"Love Us! It's no coincidence that the Supreme Court's caseload is down, and the justices' television appearances are up." Dahlia Lithwick will have this essay in the February 2007 issue of The American Lawyer.Posted at 11:30 PM by Howard Bashman"Key Lawmakers Getting Files About Surveillance Program":This article will appear Thursday in The New York Times.

And The Associated Press provides a report headlined "Mich. Affirmative Action Lawsuit Settled" that begins, "A lawsuit that prompted a 2003 U.S. Supreme Court decision over affirmative action admissions policies at the University of Michigan was settled Wednesday, concluding a nearly decade-old legal battle."Posted at 11:24 PM by Howard Bashman

"Judge Shelves Gitmo Detainee Cases": The Associated Press provides a report that begins, "Sixteen lawsuits by Guantanamo Bay detainees were put on hold Wednesday by a federal judge who said he may no longer have jurisdiction to hear their cases. U.S. District Court Judge Reggie B. Walton in Washington said the Military Commissions Act, signed into law in October, has left him unable to consider whether the detainees can challenge being held at the Marine facility in Cuba."Posted at 08:24 PM by Howard Bashman"Child porn evidence law upheld by judge; He says courts can intervene to give defendant access": The Associated Press provides a report that begins, "Federal restrictions on access to evidence in child pornography cases is constitutional because courts can intervene if the government doesn't give a defendant 'ample opportunity' to inspect the material, a judge has ruled. U.S. District Judge Robert Payne rejected David L. Knellinger's claim that a provision of the Adam Walsh Child Protection and Safety Act violates his constitutional right to a fair trial. The Richmond man is charged with seven child porn counts. However, the judge also ruled that federal authorities have failed to make Knellinger's computer hard drive 'reasonably available' for examination by defense experts at a government facility. He ordered the government to provide the defense a copy of the hard drive."

"Whose War Powers?" Law Professor Noah Feldman will have this essay (TimesSelect subscription required) in the Sunday, February 4, 2007 issue of The New York Times Magazine.Posted at 05:00 PM by Howard BashmanRetired Justice Sandra Day O'Connor ranks first with the Ninth Circuit, but not with the Second Circuit: When the U.S. Court of Appeals for the Ninth Circuit earlier this month issued an opinion from a three-judge panel on which Retired Justice O'Connor sat by designation, she was listed first in the opinion's identification of the three judges who decided the appeal.

Of course, this doesn't conclusively establish that the Second Circuit doesn't like Justice O'Connor as much as the Ninth Circuit. Rather, it merely proves that the different regional federal appellate courts follow somewhat different rules governing the order in which the judges on the three-judge panel that decided the case are listed on an opinion. It would be interesting to see whether the Ninth Circuit would list Justice O'Connor first if the Ninth Circuit's Chief Judge were also sitting on the same three-judge panel.Posted at 04:05 PM by Howard Bashman

"Experts Offer Glimpse into Workings of Supreme Court: The Supreme Court's responsibility as upholder of the Constitution at times puts it in the spotlight when controversy arises; Two authors of recent books Jeffrey Rosen and Jan Crawford Greenburg discuss the court's place in history and the makeup of the current bench." I previously linked here to online audio of this segment from Monday's broadcast of PBS's "The NewsHour with Jim Lehrer." Now you can also access the transcript and streaming video (Windows Media Player required).Posted at 02:15 PM by Howard Bashman"Justice to Release Spy Program Details": The Associated Press provides a report that begins, "Attorney General Alberto Gonzales said Wednesday he will turn over secret documents detailing the government's domestic spying program, ending a two-week standoff with the Senate Judiciary Committee over surveillance targeting terror suspects."Posted at 01:38 PM by Howard BashmanGetting banned from a federal court's library for misbehavior didn't result in an appealable order:Seventh Circuit Judge Richard A. Posner is the author of today's contribution to this blog's jurisprudence of the library. Earlier entries in this canon can be accessed here and here.Posted at 01:28 PM by Howard BashmanStill searching for that elusive Justice Hamburger: In a review of the PBS program "The Supreme Court" published today in The Los Angeles Times, that newspaper's TV reviewer includes among the list of things that he learned from watching the telecast that "There was a justice named Hamburger and a justice named Frankfurter."

As this list of U.S. Supreme Court Justices confirms, there never was any Justice Hamburger. The attempt at humor probably would have worked just as well had the reviewer written that "[t]here was a justice named Burger and a justice named Frankfurter," and it would have had the added benefit of being correct.

I've scanned through the transcripts of the four-hour show (available via this link) to try to understand better how a TV reviewer might get the idea that a Justice Hamburger actually existed. At one point, the narrator states, "But try as he might, Chief Justice Burger was not equipped to build a conservative majority on the Court. He was never going to lead the cou[r]t to revolution. The job of leadership would fall to a man who cared for no perquisites--comfy Wallabies on his big feet and a cheeseburger for lunch--Bill Rehnquist." So, the segment contains no mention of any hamburger, but there is a mention of a cheeseburger.

At another point in the transcript, one of the many commentators states, "Burger was a ham-handed Chief Justice. He wasn't particularly competent in his opinion writing. It's good to see him go. And no one ever looked back." Apparently ham-handed Burger equals Justice Hamburger. That's as close to an explanation as the transcript of hour four provides.

To access the two earlier posts in this Justice Hamburger series, simply click here and here.

"Abortion ban back again for debate; This time, bill offers exception for rape":This article appeared yesterday in The Argus Leader of Sioux Falls, South Dakota.Posted at 11:08 AM by Howard Bashman"Government Reply Brief in NSA/FISA Case": Marty Lederman has this post (linking to that brief) at "Balkinization."Posted at 10:50 AM by Howard Bashman"New York sees first death sentence passed for 50 years":This article appears today in The Times of London.

"Surveillance case to pit strong views; The U.S. argues that the ACLU challenge of Bush's domestic wiretap program is moot": Henry Weinstein has this article today in The Los Angeles Times.Posted at 07:54 AM by Howard Bashman"A judicious beginning": The St. Petersburg Times today contains an editorial that begins, "In one area at least, the White House has acknowledged political reality. With the Senate under Democratic control once again, President Bush has decided not to renominate four of his most controversial nominees to federal appellate court seats."Posted at 07:48 AM by Howard Bashman"For a Nation of Debaters, One Court to Rule Them All": Today in The New York Times, Virginia Heffernan has a review of PBS's "The Supreme Court" that begins, "A four-part program on PBS about the Supreme Court does not have to be boring, or so I believed as I sat down to watch a review copy of 'The Supreme Court,' which begins tonight. Now I believe that such a series does have to be boring."

"Killer of Detectives Gets Death Sentence": The New York Times on Wednesday will contain an article that begins, "A federal jury sentenced a 24-year-old Staten Island man to death yesterday for killing two undercover police detectives in 2003. It was the first successful federal capital punishment prosecution in more than 50 years in New York."Posted at 11:04 PM by Howard Bashman"Ex-Reporter for Times Testifies for Prosecutor Who Jailed Her":This article will appear Wednesday in The New York Times.Posted at 11:02 PM by Howard Bashman"The Inside Man: William & Mary's new president tries to get rid of a cross on campus." Cesar Conda and Vince Haley have this essay online today at The Weekly Standard.Posted at 08:54 PM by Howard Bashman"The Michigan Win: Lessons in a victory over racial preferences." Ward Connerly has this essay today at National Review Online.Posted at 08:50 PM by Howard Bashman"Hiding the Ball": In the February 12, 2007 issue of The Nation, Law Professor David Cole will have an essay that begins, "If you want to know what difference a Democratic majority in Congress makes, consider George W. Bush's recent about-face on warrantless wiretapping. For more than five years, unchallenged by the GOP-dominated Congress, his Administration has been insisting, initially in secret and subsequently in public, that the President has inherent, uncheckable authority as Commander in Chief to spy on Americans without judicial approval."Posted at 08:48 PM by Howard Bashman"Welcome Back to the Rule of Law: Bush makes good on a terrorism case (finally)." Dahlia Lithwick has this jurisprudence essay online at Slate.Posted at 08:44 PM by Howard Bashman"'The Supreme Court' makes a brief for judiciary; The breezy but fact-filled PBS documentary packs more than 200 years of U.S. history into four hours":This television review will appear Wednesday in The Los Angeles Times.

By the way, The LATimes review erroneously (but humorously) states, "There was a justice named Hamburger and a justice named Frankfurter." Chief Justice Warren E. Burger was not widely known by the nickname "Ham" as best as I can tell.

On the other hand, this transcript of an Australian radio broadcast contains the assertion (apparently spoken in all sincerity) "There's a famous statement from one of the Supreme Court Justices, Mr Justice Hamburger I think it was, justifying legal sterilisation with the statement 'Three generations of idiots are enough.'" Of course, for reasons noted in this post earlier today, that assertion is doubly wrong.Posted at 08:05 PM by Howard Bashman

"Stephen Henderson, McClatchy Newspapers, Supreme Court Correspondent talks about his series on death penalty cases in Georgia, Mississippi, Alabama and Virginia." My pal Steve Henderson appeared today on C-SPAN's "Washington Journal," and you can watch his segment online by clicking here (RealPlayer required).

"Custody fallout: Judge scolded; His conduct worked against Chinese parents, court details."This article appeared Sunday in The Commercial Appeal of Memphis. That day's newspaper also contained an op-ed by Chris Peck entitled "He case: microcosm of Memphis."

"Test of Bush's terror-fighting authority heads to higher court; Before the federal appeals judges: What rights does a noncitizen legal resident have when the government names him an enemy combatant?" Warren Richey will have this article Wednesday in The Christian Science Monitor about a case to be argued Thursday before a three-judge panel of the U.S. Court of Appeals for the Fourth Circuit.

Because the case is being argued in the Fourth Circuit, the identity of the judges on the panel won't be known publicly until the morning of the oral argument, but we do already know that the case is slated to be argued in the "Green Carpet" courtroom, which if memory serves is also the courtroom the Fourth Circuit uses for en banc arguments.Posted at 05:50 PM by Howard Bashman

"Senators Assert Right to Block Bush on Iraq": The New York Times provides a news update that begins, "Democrats on the Senate Judiciary Committee began laying the constitutional groundwork today for an effort to block President Bush's plan to send more troops to Iraq and place new limits on the conduct of the war there, perhaps forcing a withdrawal of American forces from Iraq. They were joined by Senator Arlen Specter, the Pennsylvania Republican who led the panel for the last two years, in asserting that Mr. Bush cannot simply ignore Congressional opposition to his plan to send 21,500 additional troops to Iraq."Posted at 05:35 PM by Howard Bashman"The Irrational 18-Year-Old Criminal: Evidence that prison doesn't deter crime." Professor Joel Waldfogel has this essay today online at Slate.Posted at 05:33 PM by Howard Bashman"Another defeat for age bias claim on pensions": Lyle Denniston has this post at "SCOTUSblog."

"Certiorari Briefing in Coltec and Dow Chemical Tax Shelter Cases":This post, providing access to those briefs, appears today at "TaxProf Blog."Posted at 04:10 PM by Howard BashmanU.S. Court of Appeals for the Third Circuit affirms the dismissal of claims alleging that PNC Bank's conversion of its pension plan from a traditional defined benefit plan to a cash balance plan violated ERISA: You can access today's ruling at this link. According to the decision, "The most significant issue on this appeal is whether the district court erred in holding that the PNC cash balance plan does not discriminate against older employees on the basis of their age."Posted at 03:15 PM by Howard BashmanEleventh Circuit rejects pimp's Commerce Clause challenge to federal convictions for enticing a minor to engage in a commercial sex act and enticing a minor to engage in prostitution: Although the underage prostitute's business was limited to south Florida, today's ruling explains that the pimp supplied her with condoms manufactured overseas and gave her a cell phone over which she conducted business. Also, the prostitute met customers in hotels. These facts sufficed to defeat the pimp's Commerce Clause challenge to his convictions. You can access today's ruling at this link.Posted at 03:12 PM by Howard Bashman"Court Reinstates Key Padilla Charge": The Associated Press provides a report that begins, "A federal appeals court on Tuesday reinstated a key terrorism charge, the only one carrying a potential life sentence, against alleged al-Qaida operative Jose Padilla."

Today, that same three-judge Ninth Circuit panel granted panel rehearing and issued a revised opinion recognizing that the employee "retained a legitimate expectation of privacy in his workplace office." The defendant still loses under today's revised ruling, but the decision appears to eliminate some of the initial ruling's language and reasoning that Professor Kerr found troubling.Posted at 01:30 PM by Howard Bashman

"Why not to shoot a gun into the air for fun": "Boing Boing" answered this question in anticipation of the 2006 New Year's celebration. Some related anecdotes and news stories are collected here.

"Unborn child's death may draw a rarely used charge; After beaten woman miscarries, police arrest her boyfriend":This article appears today in The Pioneer Press of St. Paul, Minnesota.Posted at 11:25 AM by Howard Bashman"Court ruling might yield caution among lawyers": Yesterday's edition of The Las Vegas Review-Journal contained an article that begins, "The Nevada Supreme Court's harsh rebuke of a Las Vegas attorney has caught the attention of the state's legal community, and some say the recent opinion could affect the future conduct of trial lawyers and judges alike."

"Uighurs' Detention Conditions Condemned; Lawyers' Complaint Part of Effort to Get Expedited Review": The Washington Post today contains an article that begins, "Chinese Uighurs who have been imprisoned for the past month at a new state-of-the-art detention camp at Guantanamo Bay, Cuba, are being held around the clock in near-total isolation, a circumstance their lawyers say is rapidly degrading their mental health, according to an affidavit filed in federal court yesterday."Posted at 07:45 AM by Howard Bashman"Canada's Good Example": The New York Times today contains an editorial that begins, "Canada set an important example of decency when it offered a formal apology and compensation worth millions of dollars to a Syrian-born Canadian citizen who was a victim of President Bush’s use of open-ended detention, summary deportation and even torture in the name of fighting terrorism."Posted at 07:35 AM by Howard Bashman"Miers Leaves White House With No Regrets": The Associated Press provides this report.Posted at 07:28 AM by Howard Bashman"How Will the Roberts Court Deal with Cases Affecting Corporate America? A Recent Decision Regarding the Federal Employer Liability Statute Provides Insight." Anthony J. Sebok has this essay online at FindLaw today.Posted at 06:45 AM by Howard Bashman

Additional information about the program, including links to transcripts of the program's four hour-long episodes and other reviews, can be accessed via this earlier post.Posted at 09:00 PM by Howard Bashman

You can't yet view it on TV, but you can now access the transcripts:The web site that PBS has created in connection with its forthcoming broadcast, this Wednesday night and next Wednesday night, of the program "The Supreme Court" provides access to the transcripts for all four hours of the show. You can access the transcripts at the following links: first hour; second hour; third hour; and fourth hour.

You can access via this link various newspaper reviews of the program.

Update: True, the final hour of the program on Wednesday, February 7, 2007 is up against a brand new episode of ABC's "Lost," but at least Comedy Central had the good sense to schedule "The Sarah Silverman Program" (reviewed here in the current issue of The New Yorker) for Thursday nights at 10:30 p.m. eastern time.Posted at 04:00 PM by Howard Bashman

Some background on the underlying dispute that gives rise to today's decision can be accessed here. (This item notes that this particular pro se litigant is also a lawyer, but that doesn't make him any less pro se, does it?)Posted at 02:55 PM by Howard Bashman

"Killers face uncertain death; Strickland may be sympathetic to claims of mental retardation":This article appears today in The Cincinnati Enquirer.

Yesterday's newspaper contained three more death penalty-related articles, and you can access them via this link at the "Ohio Death Penalty Information" blog.Posted at 02:27 PM by Howard Bashman

"I hope that the Executive Branch revisits this case and, if the facts truly are as they have been made to appear to us, will consider letting the defendants go after a more appropriate term of incarceration." So writes Ninth Circuit Judge Richard R. Clifton in a concurring opinion issued today.

Judge Clifton's concurring opinion begins:

I write separately to express my dismay at the consequences of the result we reach. Although I concur in the memorandum disposition and join fully in its legal analysis, I find the outcome of this case to be troubling.

Even the Government appears to accept that the terrible death of the victim here was an unintended consequence of the defendants' act of burning down a house they viewed as theirs, in order to end a long-running family disagreement. It has not been disputed that the defendants acted without knowledge that the victim, previously seen getting into a car, had returned to the house and fallen asleep in a bedroom. Nothing reflects any intent on the part of the defendants to injure the victim or anyone else. Aside from this one episode, the defendants have had only a few minor brushes with the law. Yet the mandatory sentences of life imprisonment mean that the lives of these young people, aged 25 and 21 at the time of conviction, may be entirely squandered in prison. It is appropriate that the defendants be seriously punished for what they did, but these life sentences do not square with my concept of justice.

Today's non-precedential opinion affirming the convictions and sentences can be accessed here.

A federal appellate perspective on the Super Bowl, part two: In response to this post from earlier this morning, a reader emails:

I just read your interesting post on the superbowl & intra-circuit rivalries. With the understanding that you were just forwarding someone else's post, it seems worthwhile to note that this superbowl will actually be the *third* between two teams from different states within the same federal circuit. (Although the second between two teams from different states *currently* within the same federal circuit).

The reason for this is that Superbowl VI was between Dallas and Miami. While of course those two teams are now in different federal circuits, at the time the game was played (1972), I believe both were in the 5th Circuit.

This reader is correct, as in 1972 the State of Florida was part of the Fifth Circuit. The Eleventh Circuit came into being on October 1, 1981.Posted at 10:55 AM by Howard Bashman"Update on the Sixth Circuit Litigation Challenging the NSA's Terrorist Surveillance Program": Marty Lederman has this post today at the "Balkinization" blog. Marty's post notes that the three-judge Sixth Circuit panel scheduled to hear oral argument on Wednesday consists of "Judges Alice Batchelder (appointed 1991), Ronald Gilman (appointed 1997) and Julia Smith Gibbons (appointed 2002)."

A federal appellate perspective on the Super Bowl: Attorney Elliot Regenstein, who practices law in Chicago, emails this morning:

I don't know if you follow these things carefully, but nobody else has noted that this year's Super Bowl will be only the second ever between two teams from different states within the same federal appellate circuit (the first being Super Bowl IV, an intra-8th Circuit tussle). It's at most the fourth Super Bowl involving teams from within the same circuit -- XXIX (49ers over Chargers) clearly qualified, and XXV (Giants over Bills) might, depending on where you count the Giants.

It guarantees that the 7th Circuit will pick up its fifth Super Bowl title, tying it for second with the 3d and the 5th but behind the 9th (which has 8). Those rankings count the two New York Giants titles with the Second Circuit, which of course is a debatable point. The Sixth Circuit remains the only federal appellate court not to win a Super Bowl title; the Lions and Cleveland Browns have never made it, the Bengals are 0-2, and the Titans are 0-1. Every other circuit has at least two titles.

I thank my correspondent for sending this along. You can access at this link a list of the outcomes of the previous 40 Super Bowls.Posted at 10:24 AM by Howard Bashman"Unabomber's act still affects Prof. Gelernter; Computer science prof. opposed to publishing prisoner's writings":This article appears today in The Yale Daily News.Posted at 09:28 AM by Howard Bashman"Madame Justice": At her "Legalities" blog, Jan Crawford Greenburg has a post that begins, "Justice Ruth Bader Ginsburg said in a speech Friday night that she didn't like being 'all alone on the Court,' according to [an] account by the Associated Press." The post also mentions Jan's book tour, which gets underway tonight in the Chicago area. Details here.Posted at 09:04 AM by Howard Bashman"Decorum on Appeal: When Judges Are Under Attack."This week's installment of my "On Appeal" column for law.com begins, "Some judges are crooked. Others are idiots. And some ignore or distort the facts and applicable law to reach results more to their liking than the facts and law, honestly portrayed, would allow."Posted at 08:44 AM by Howard Bashman"Journalists to take stand in Libby's perjury trial; Defense might rely on their testimony to show Libby didn't deliberately lie about Plame case":This article appears today in USA Today.Posted at 08:42 AM by Howard Bashman"Series shines a light on Supreme Court": The San Jose Mercury News today contains this review of the PBS program "The Supreme Court," scheduled to air this Wednesday night and next Wednesday night.

"Stay extends death-row record": The Washington Times today contains an article that begins, "The man who has been on the Texas death row longer than anyone else in history was saved from scheduled execution last week by the U.S. Supreme Court with no specific reasons given for the intervention."Posted at 08:15 AM by Howard Bashman"Author Takes On Civil Liberties Of 1812": The Hartford Courant today contains an article that begins, "Matthew Warshauer is not entirely happy that his first book - a study of Andrew Jackson's suspension of civil liberties in wartime - has gotten national attention. On the one hand, he was excited to read the 5,000-word review in last week's New Yorker that calls his book 'lucid and well-researched.' On the other hand, Warshauer understands that his book's popularity is tied to post-Sept. 11 civil liberties violations."

"Potshot at Guantanamo lawyers backfires; Big firms laud free legal aid for detainees":This article appears today in The Boston Globe.Posted at 08:05 AM by Howard Bashman"Home Is Where Her Hog Is; A couple of years ago, a petrified little pig escaped the butcher, thanks to its new owner; Now the Herndon woman is fighting a zoning law to keep her 140-pound pet at her house": The Washington Post contains this article today.Posted at 08:03 AM by Howard Bashman"Courts Turn to Wikipedia, but Selectively":This interesting article appears today in The New York Times.

"Weighing the Consequences of Telling Others the Truth": Adam Liptak will have this column (TimesSelect temporary pass-through link) in Monday's edition of The New York Times focusing on the D.C. Circuit's en banc oral argument this past week in the lawsuit captioned Boehner v. McDermott.Posted at 11:22 PM by Howard Bashman"Murphy and the Sixteenth Amendment in Relation to the Taxation of Non-Excludable Personal Injury Awards": Law Professor Joseph M. Dodge has posted this essay (abstract with links for download) online at SSRN (via "Legal Theory Blog").

If there were ever any reason to doubt whether the three-judge panel that originally decided this case was seriously in error, Professor Dodge's article should remove all doubt. At the article's conclusion states at its outset, "The Murphy panel decision should not only be reversed, but it should be condemned in the strongest terms." Fortunately, the three-judge D.C. Circuit panel whose decision is the subject of Professor Dodge's article has recently granted panel rehearing to reconsider that ruling.

"Conservative Judicial Activism? Inventing a constitutional right to 'medical self-defense.'" Law Professor Robert F. Nagel will have this essay in the February 5, 2007 issue of The Weekly Standard.Posted at 10:58 PM by Howard Bashman"Recent Supreme Court rulings affect local trial; Buttons banned, judge mulls sentencing issue":This article appears today in The Monterey County Herald.Posted at 10:55 PM by Howard Bashman"A Pillar of American Justice": In the February 12, 2007 issue of The Nation, Charles A. Miller will have an essay that begins, "A great American was born 150 years ago. His name was Louis Brandeis. From 1916 to 1939, he served on the US Supreme Court."Posted at 08:42 PM by Howard Bashman"Taps: How do you make Alberto Gonzales stop lying?"This editorial will appear in the February 5, 2007 issue of The New Republic.Posted at 08:40 PM by Howard Bashman"Effort to make court arguments confidential smacks of 'Robitis'": Glenn Gilbert has this op-ed today in The Oakland Press of Pontiac, Michigan.Posted at 04:55 PM by Howard Bashman"Judge 'Supreme Court' on merits, not on its limits": The Orlando Sentinel today contains this review of the PBS program "The Supreme Court," due to air this Wednesday.

I have watched on DVD the first two hours of the PBS program, and I enjoyed the second hour more than the first. Those first two hours are scheduled to air together this Wednesday, with the final two hours of the broadcast scheduled to air one week later.

"The Truth About Clarence Thomas: He's an independent voice, not a Scalia lackey." This op-ed by ABC News correspondent Jan Crawford Greenburg, which originally appeared in last Monday's edition of The Wall Street Journal, is now freely available online at this link via OpinionJournal.

"Are Prisons Driving Prisoners Mad?"This article will appear in the February 5, 2007 issue of Time magazine.Posted at 03:50 PM by Howard Bashman"Libby trial shows unsealed lips in CIA; Though the agency has sought to protect covert identities, the leak case reveals that the secrecy rules are sometimes ignored": The Los Angeles Times contains this article today.Posted at 12:28 PM by Howard Bashman"Convict's slow road to death; Ronald Chambers' lethal injection date has been delayed more than 30 years as the legal process takes its course":This article appears today in The Los Angeles Times.Posted at 12:25 PM by Howard Bashman"Church-state 'wall' coming back down?" The Washington Times contains this article today.Posted at 12:18 PM by Howard Bashman"From Court To Jester: Without Dissent, Alfalfa Club Honors Sandra Day O'Connor."This article appears today in The Washington Post.Posted at 12:10 PM by Howard Bashman"In the Penalty Phase, All One's Secrets Revealed": According to an article published today in The New York Times, "The degree of scrutiny afforded a capital defendant is enough to mortify anyone who has ever been a child, dated a girl, gotten a haircut or tried to dress fashionably. This is the full probe. All your secrets revealed. Some defendants consider it either more agonizing than death, a sentence no federal jury in New York has prescribed for a half-century, or at least worth a big gamble to avoid."Posted at 11:55 AM by Howard Bashman"Scalia Dons the Robes of a Scholar for a Day":This article appears today in The New York Times.Posted at 11:54 AM by Howard Bashman"Google's Moon Shot: The quest for the universal library." Jeffrey Toobin will have this "Annals of Law" article in the February 5, 2007 issue of The New Yorker.Posted at 09:14 AM by Howard Bashman"Free speech at hub of judge, panel clash; Jurist argues that Constitution, court ruling protect his off-the-bench remarks": The Arkansas Democrat-Gazette today contains an article that begins, "In his fight with the state panel that disciplines judges, Appeals Court Judge Wendell Griffen claims his controversial political remarks are protected by a U.S. Supreme Court decision. The outspoken jurist isn't the first to claim the 2002 decision, Republican Party of Minnesota v. White, shields speech by judges when they are off the bench. Legal scholars say a broad interpretation of the court's opinion could save Griffen from censure, but the few courts in other states that have tested the decision haven't always been sympathetic to those claims, at least when cases center on campaign promises made by candidates for judgeships, a situation a little different from Griffen's case."Posted at 08:57 AM by Howard Bashman

Saturday, January 27, 2007

"Mack loses control of family trust": The Reno Gazette-Journal today contains an article that begins, "A family trust that Darren Mack set up for his three children was taken out of his control and placed under the administration of a man who helped murder victim Charla Mack try to get Mack's assets during their divorce, according to a state judge's order. Mack's lawyer, Mark Wray, immediately appealed the ruling to the Nevada Supreme Court."

"Abortion loophole or legal prudence? The mental-health exception to limits on late-term procedures was key to Kline's case." The Kansas City Star today contains an article that begins, "Sometime in August 2003, a 22-year-old woman had an abortion in Wichita. She was seven months pregnant. Her name and her story are unknown. But the reason her doctor gave to justify the late-term abortion is now at the center of Kansas' abortion debate. That reason: The woman was seriously depressed."Posted at 04:50 PM by Howard Bashman"Rell says she will name a new chief justice nominee soon": The AP provides this report from Connecticut.Posted at 04:47 PM by Howard Bashman"Abortion doctor continues his fight": The Associated Press provides a report that begins, "Abortion doctor LeRoy Carhart is entrenched in what he calls a 'never-ending battle' - one that anti-abortion advocates have strongly urged him to surrender."Posted at 04:45 PM by Howard Bashman"Lawyer suited for tough inquiries to replace Harriet Miers; Democrats' rise created need to replace White House counsel, officials say":This article will appear Sunday in The Austin American-Statesman.Posted at 04:40 PM by Howard Bashman"Retardation appeals in limbo, years after ruling": The Houston Chronicle today contains an article that begins, "Five years after the U.S. Supreme Court banned the execution of mentally retarded killers, 16 death row inmates from Harris County are still waiting to have their appeals on the issue resolved."Posted at 04:35 PM by Howard Bashman"ACLU wants access to sealed wiretap filings; The government calls the group's NSA case moot; Papers backing that motion are secret": Henry Weinstein has this article today in The Los Angeles Times.

The Atlanta Journal-Constitution is reporting: Sunday's newspaper will contain an article headlined "Intern helped win life-changing case" that begins, "Cliff Williams was as green as they come: 27 years old. Third-year law student. Intern. But there he stood that day, before a real judge, about to argue a motion in a real case. And not just any case. The case of a man he believed to be innocent. A man who had already served nearly 22 years of a 45-year sentence. His hands trembled. He was afraid his voice would quaver. But Williams managed that day to successfully argue for post-conviction DNA testing that would exonerate Willie O. 'Pete' Williams. It was perhaps a defining moment in a career that hasn't even started. Pete Williams became a free man last week. Cliff Williams, who's not related to his client, became intern extraordinare."

And today's newspaper contains an article headlined "Location secrecy in murder trial may be a Ga. first" that begins, "A Forsyth County judge may be setting a precedent in Georgia by ordering that the location of Lynn Turner's second murder trial be kept secret until one business day before jury selection. Other high profile cases -- including the Fred Tokars murder trial and the murder conspiracy trial of former DeKalb County Sheriff Sidney Dorsey -- were moved for pretrial publicity, but had no such restrictions."Posted at 03:05 PM by Howard Bashman

"A parking problem": The St. Petersburg Times today contains an editorial that begins, "Has it gotten to the point where it needs to be said that a judge who decides disability claims should not park his car in a handicap space using a permit issued to someone else?"

"Va. Death Penalty Expansion Approved; Bills Likely to Go To Kaine, a Foe of Capital Punishment":This article appears today in The Washington Post.Posted at 02:45 PM by Howard Bashman"Focus Is on Cheney at Libby Trial":This audio segment (RealPlayer required) featuring Nina Totenberg appeared on today's broadcast of NPR's "Weekend Edition Saturday."Posted at 02:35 PM by Howard Bashman"Columbine records may be sealed; Words of killers' parents could be archived 25 years": Today's edition of The Rocky Mountain News contains an article that begins, "A federal judge said Friday he is considering sending depositions of the Columbine High School killers' parents to a national archive, where they would be kept under seal for at least 25 years. U.S. District Court Judge Lewis T. Babcock's suggestion angered parents of some victims, who said the depositions, along with other pieces of evidence from the 1999 murders, should be made public."

"Porn Filmmaker Finds Out a 'K' Can Be Owned": The New York Times today contains an article that begins, "The cast was entirely Israeli. The script was entirely in Hebrew. The film was entirely treif. It was pornographic and it carried a kosher label on its cover, which its producer, Oren Cohen, said he thought would help the buzz."

House arrest at the Ritz-Carlton hotel in Marina del Rey: The Los Angeles Times today contains an article headlined "Not the slammer, not the hoosegow, but a five-star hotel room" that begins, "A businessman sentenced to home detention for conspiring to illegally videotape Michael Jackson is doing his time in an especially sweet home: the Ritz-Carlton hotel in Marina del Rey. Jeffrey Borer, sentenced in October for conspiring to sell a videotape of Jackson in 2003 when the pop singer was facing child molestation charges, has been living at the hotel with his wife. He is paying his debt to society with access to a harbor-side pool and restaurant, two tennis courts and a spa."Posted at 11:10 AM by Howard BashmanHappy birthday to the Chief Justice of the United States: The Associated Press reports here that today, "John Roberts, chief justice of the United States, is 52."Posted at 09:00 AM by Howard Bashman"Talk of the Gown: What the Supreme Court justices won't say speaks volumes." Dahlia Lithwick has this jurisprudence essay online today at Slate.Posted at 08:24 AM by Howard Bashman"Thomas recognizes Arnold brothers; Justice singles out Richard, says he had countenance for Supreme Court": The Arkansas Democrat-Gazette contains this article today.

"Mrs. Alito Makes Nice With Ralph Neas": Mary Ann Akers has this post today at her new blog,"The Sleuth," at washingtonpost.com. And while Mrs. Alito got to make nice with Ralph Neas, at the very same book launch party I got to make nice with Nan Aron, who counts herself among the many fans of "How Appealing."Posted at 11:30 PM by Howard Bashman"Move to disclose secret court's spying orders": Lyle Denniston has this post online at "SCOTUSblog."Posted at 11:04 PM by Howard Bashman"Ruthless Nation: Paris Reigns Supreme Vs. Justice Ginsburg." Andrea Peyser has this essay today in The New York Post.Posted at 11:00 PM by Howard Bashman"Supreme Court justice praises late federal judge from Ark." The Associated Press provides a report that begins, "Supreme Court Justice Clarence Thomas remembered a late federal court judge from Arkansas on Friday as 'perhaps the most outstanding judge in his time' for championing individual liberties and judicial restraint. In a 35-minute speech to the University of Arkansas at Little Rock's William H. Bowen School of Law, Thomas praised Richard Sheppard Arnold's judicial style and sparingly offered his own opinion."

"Federal Court Rules Against EPA": The Associated Press provides a report that begins, "The Environmental Protection Agency must force power plants to protect fish and other aquatic life even if it's expensive, a federal appeals court said in a ruling favoring states and environmental groups."

Jan Crawford Greenburg discussed her new book on today's broadcast of WNYC public radio's "The Leonard Lopate Show": You can listen online via this link, or you can download the mp3 audio by clicking here. The segment runs approximately 32 minutes.Posted at 07:00 PM by Howard Bashman"Gonzales appoints political loyalists into vacant U.S. attorneys slots": McClatchy Newspapers provide this report.Posted at 06:45 PM by Howard Bashman"Bush does not seek diversity on the bench": In today's edition of The Clarion-Ledger of Jackson, Mississippi, columnist Eric Stringfellow has an op-ed that begins, "It's unfortunate that President Bush has tapped Leslie Southwick to star in the latest sequel to fill a vacancy on the 5th U.S. Circuit Court of Appeals."Posted at 05:55 PM by Howard Bashman"Canada Apologizes to Deportation Victim": The Associated Press provides a report that begins, "The prime minister apologized Friday to a Syrian-born Canadian and said he would be compensated $8.9 million for Ottawa's role in his deportation by U.S. authorities to Damascus, where he was tortured and imprisoned for nearly a year. Prime Minister Stephen Harper again called on Washington to remove Maher Arar from its no-fly and terrorist watchlists. He reiterated that Canada would keep pressing the United States to clear Arar's name."

Jan Crawford Greenburg, on book tour: On the evening of Monday, January 29, 2007, she'll be at Temple Jeremiah in Northfield, Illinois. Details here and here.

Midday on Tuesday, January 30, 2007, she'll be speaking at the Union League Club of Chicago. Details and online registration are available here.

On the afternoon of Thursday, February 1, 2007, she'll be at Pepperdine University School of Law to discuss the book. Also scheduled to take part in the discussion are Jonathan Varat, Jesse Choper, Professor Doug Kmiec, and Dean Ken Starr. Details here.

And then on the afternoon of Saturday, February 3, 2007, Jan will be at the Book Passage bookstore in San Francisco. Details here.

In case you missed it, early this morning at "The Volokh Conspiracy," Ilya Somin had a post about Jan's new book in which he wrote, "it is probably the best book about the Supreme Court that I have ever read that was written by a journalist."Posted at 03:33 PM by Howard Bashman

"Jury rejects Kopp's defense; Killer of doctor is found guilty on both counts": The Buffalo News today contains an article that begins, "James C. Kopp failed to sway a single juror with his argument that he had a right to shoot Dr. Barnett A. Slepian to stop him from performing abortions. Jurors also rejected Kopp's repeated contentions that he never meant to kill Slepian, only wound him, or that Slepian died because the bullet took what he called a crazy ricochet."Posted at 11:18 AM by Howard Bashman"Horse-slaughter industry in flux; Airlines won't carry meat, plants' status hazy after ban upheld": The Dallas Morning News today contains an article that begins, "A federal court decision that upheld a Texas ban on horse meat for human dining has thrown the horse-slaughter industry into flux, with two airlines saying they won't transport the meat and with representatives of Texas' two slaughter plants giving conflicting reports about whether they have temporarily ceased operations."

"As D.C. experience ends, Miers focuses on positive; Leaving post as Bush counsel, she has options to weigh back in Dallas": Today in The Dallas Morning News, Todd J. Gillman has an article that begins, "Not long ago, Harriet Miers was heading for any lawyer's dream job -- a lifelong seat on the Supreme Court. In a few days, she'll leave here entirely, vacating a big West Wing office and returning to Dallas to size up her options."Posted at 10:50 AM by Howard BashmanToday's rulings of note from the U.S. Court of Appeals for the Sixth Circuit: 1. On rehearing en banc, the Sixth Circuit today recognizes that in reviewing labor-management arbitration awards, that court had previously failed to adhere to the severely restricted standard of review that the U.S. Supreme Court has specified. You can access today's ruling at this link. The en banc majority opinion is written by Circuit Judge Jeffrey S. Sutton, who called for en banc review in a concurring opinion issued one year ago tomorrow, when the original three-judge panel filed its ruling in this very same case. My earlier coverage of that three-judge panel's ruling can be accessed here.

2. In a second decision issued today, the Sixth Circuit resolves "a question that has not been considered by this or any other court -- whether the record rental exception to copyright's first sale doctrine applies to all sound recordings, or only sound recordings of musical works." The majority on a divided three-judge panel concludes that the section of the federal Copyright Act "applies only to sound recordings of musical works and does not apply to sound recordings of literary works."

3. Today's final ruling of note from the Sixth Circuit examines whether a U.S. Supreme Court decision from 2005, holding on writ of certiorari to the Michigan Court of Appeals that that the due process and equal protection clauses of the U.S. Constitution require the appointment of counsel for defendants seeking leave to appeal from a plea-based conviction in Michigan state court, applies retroactively to defendants who now challenge by means of a federal writ of habeas corpus the earlier denial of counsel in their direct state court appeal from a plea-based conviction. The majority, in an opinion by Circuit Judge Boyce F. Martin, in which Circuit Judge Martha Craig Daughtrey joins, holds that the right to counsel on direct appeal from a guilty plea in a Michigan state court does apply retroactively on habeas review. U.S. District Judge Danny Reeves of the Eastern District of Kentucky, sitting by designation, dissents. This case strikes me as a strong candidate for rehearing en banc.Posted at 10:10 AM by Howard Bashman

"Class-action suits get access to files; State's high court lets lawyers see customer complaints": Today in The San Francisco Chronicle, Bob Egelko has an article that begins, "Lawyers who file class-action lawsuits over defective products are entitled to the names of customers who have complained about those products, unless a customer objects to disclosure, the state Supreme Court ruled Thursday."

"Investigation sought into detainee remark": Today in The San Francisco Chronicle, Bob Egelko has an article that begins, "The Bar Association of San Francisco said Thursday that it wants state attorney discipline investigators to decide whether a Bush administration official, who is also a California lawyer, violated ethical standards by calling for a business boycott of law firms representing prisoners at Guantanamo Bay."Posted at 08:54 AM by Howard Bashman"Handicapped parking space filled by judge; The problem: The placard on the dashboard of his Mercedes was issued to an 86-year-old woman." The St. Petersburg Times today contains an article that begins, "Each day, administrative law judge Elving L. Torres decides whether people are disabled enough to receive Social Security benefits. Sometimes he puts himself in the shoes of people who appear before him: He parks his luxury import car in the handicapped spaces outside the building where he works. A handicapped parking placard appears on the dashboard of his silver Mercedes-Benz AMG coupe. But it was issued to an 86-year-old woman from Bradenton, according to state motor vehicle records."Posted at 08:44 AM by Howard Bashman"Death penalty repeal sought; O'Malley backs bills to replace executions with life without parole": Today's edition of The Baltimore Sun contains an article that begins, "Gov. Martin O'Malley said yesterday that he would sign a repeal of the death penalty if a bill reaches his desk, weighing in on the contentious issue hours after a coalition of legislators and activists renewed their push to strike Maryland's execution law from the books."

"Dismissal of Lawsuit Against Warrantless Wiretaps Sought": The Washington Post today contains an article that begins, "A lawsuit challenging the legality of the National Security Agency's warrantless surveillance program should be thrown out because the government is now conducting the wiretaps under the authority of a secret intelligence court, according to court papers filed by the Justice Department yesterday."Posted at 08:27 AM by Howard Bashman"Judge Urges U.S. to Drop Plan to Seek Death Penalty in Case": The New York Times today contains an article that begins, "A federal judge, at the close of the death penalty trial of a convicted drug trafficker with ties to the rap music industry, called the government's effort to seek his execution 'absurd' and a waste of money and urged prosecutors to ask their Justice Department superiors in Washington to abandon the endeavor."

The opinion explains that the current conviction was obtained after a hung jury at an earlier trial had failed to convict Crook on fifteen counts of theft of public money in violation of a different federal criminal statute, demonstrating that Crook's guilt was not fait accompli despite her surname.Posted at 07:50 PM by Howard Bashman

"Cheney Official Testifies at CIA Leak Trial":This audio segment (RealPlayer required) appeared on this evening's broadcast of NPR's "All Things Considered."Posted at 07:44 PM by Howard Bashman"No Exit": In the February 15, 2007 issue of The New York Review of Books, Joseph Lelyveld will have an essay that begins, "The Bush administration seems never to have put it quite so baldly but in its rush to consolidate its authority after the terrorist attacks of September 11, it came close to asserting the power of the commander in chief to declare anyone in the world, of whatever citizenship or location, 'an unlawful enemy combatant' and--solely on the basis of that designation--to detain the person indefinitely without charge, beyond reach of any court."Posted at 07:40 PM by Howard Bashman"The hair-splitter in chief": Today in The Fort Worth Star-Telegram, columnist Linda P. Campbell has an op-ed that begins, "Justice Robert Jackson famously wrote in 1949 that the Bill of Rights isn't 'a suicide pact.' But loyalty to George W. Bush increasingly seems to be one -- at least in the way that Attorney General Alberto Gonzales reads the Constitution."Posted at 07:38 PM by Howard Bashman"Specter v. Gonzales: Senator Specter still misunderstands habeas corpus." Adam J. White has this essay online at The Weekly Standard.

"Abortion Doctor's Killer Convicted Again": The Associated Press provides a report that begins, "A man already serving time in a state prison for the sniper-shooting death of a doctor was convicted Thursday on a federal charge of targeting and killing the man because he provided abortions."Posted at 05:30 PM by Howard Bashman"Former Dictator Noriega to Be Released":This audio segment (RealPlayer required) appeared on today's broadcast of NPR's "Day to Day."Posted at 04:45 PM by Howard Bashman"Government secrecy, threat to press examined": The First Amendment Center has today issued a news release that begins, "A new First Amendment Center report examines the rising conflicts between the federal government and the press over matters of secrecy, leaks and threats to prosecute journalists for espionage or treason for reporting classified information."

This is a case about fish and other aquatic organisms. Power plants and other industrial operations withdraw billions of gallons of water from the nation’s waterways each day to cool their facilities. The flow of water into these plants traps (or 'impinges') large aquatic organisms against grills or screens, which cover the intake structures, and draws (or 'entrains') small aquatic organisms into the cooling mechanism; the resulting impingement and entrainment from these operations kill or injure billions of aquatic organisms every year. Petitioners here challenge a rule promulgated by the Environmental Protection Agency pursuant to section 316(b) of the Clean Water Act that is intended to protect fish, shellfish, and other aquatic organisms from being harmed or killed by regulating 'cooling water intake structures' at large, existing power-producing facilities.

Eighth Circuit, in non-precedential ruling, reinstates intervenor status for two pregnancy crisis centers in challenge to a South Dakota's abortion informed consent law: You can access today's ruling at this link. The ruling will allow the crisis centers to continue to participate in appellate proceedings in the Eighth Circuit, which earlier this month granted rehearing en banc to reconsider a federal district court's entry of a preliminary injunction suspending enforcement of the law.Posted at 11:57 AM by Howard Bashman"It is well settled that a panel of the court of appeals may depart from circuit precedent based on an intervening opinion of the Supreme Court that undermines the prior precedent. But what of the situation where an intervening decision of the Supreme Court is filed while a similar case is under submission in the court of appeals, and the Supreme Court's new pronouncement is unnoticed by the panel?"Eighth Circuit Judge Steven M. Colloton -- whose lovely wife was at last night's book launch party in Washington, DC, bringing back fond memories of last summer's visit to Brainerd, Minnesota -- has today issued an interesting dissenting opinion addressing that question.

Judge Colloton's dissent notes that "[t]his 'unusual and delicate situation' has been addressed in only three reported opinions, and all three circuits have held that a panel of the court of appeals may follow the overlooked decision of the Supreme Court, rather than the prior panel decision that was filed without consideration of the Supreme Court's intervening opinion."Posted at 11:40 AM by Howard Bashman

"Deciding whether Kopp will ever be free; Jury must determine whether doctor's killer should spend rest of his life in prison":This article appears today in The Buffalo News.Posted at 11:03 AM by Howard Bashman"Outrageous Injustice: Genarlow Wilson, honor student and football star, had consensual sex with a fellow teenager; What happened to him next was a crime." Thanks to the "Sentencing Law and Policy" for the pointer to this lengthy article published in ESPN The Magazine.

"AG: No death penalty in abortion cases; He says law doesn't make doctor violations subject to penal code." The Dallas Morning News today contains an article that begins, "Doctors who illegally perform abortions either in the third trimester or on a minor without her parent's permission aren't subject to the death penalty, Attorney General Greg Abbott said in a legal opinion issued Wednesday."

"Phone firms gain upper hand on privacy rulings; Judge denies state venue to consider surveillance dispute": Today in The San Francisco Chronicle, Bob Egelko has an article that begins, "Telephone companies and the Bush administration, which are defending themselves against lawsuits accusing them of colluding in illegal surveillance of Americans, scored a tactical victory when a federal judge refused to allow California courts to consider claims that the companies violated state privacy laws."Posted at 08:55 AM by Howard Bashman"Judge scolds Padilla's lawyers for leak; A federal judge issued a mild reprimand to public defenders who leaked classified wiretap evidence to the New York Times in the Jose Padilla terror case":This article appears today in The Miami Herald.

"Held In Contempt, Al-Arian Launches Hunger Strike": Yesterday's edition of The Tampa Tribune contained an article that begins, "Sami Al-Arian has begun another hunger strike after being held in contempt for refusing to testify before a grand jury in Virginia, his supporters say. In the meantime, Al-Arian has appealed an order with the 11th U.S. Circuit Court of Appeals that says his plea agreement in Tampa does not protect him from having to testify in Virginia."Posted at 08:40 AM by Howard Bashman"Off-Campus Party Theme Called Racially Insensitive; Law School Plans Session To Deal With 'Hurtful' Actions": The Hartford Courant today contains an article that begins, "The interim dean of the University of Connecticut School of Law has scheduled a schoolwide roundtable discussion for today to air concerns raised by a weekend off-campus party in which some law students dressed in hip-hop clothes and toted 40-ounce bottles of malt liquor."Posted at 08:30 AM by Howard Bashman"Court Rejects Senator's Bid To Eliminate Fish Agency": The Washington Post today contains an article that begins, "In a slap at the power of a single U.S. senator to change federal policy, the U.S. Court of Appeals for the 9th Circuit struck down today an attempt by Sen. Larry E. Craig (R-Idaho) to eliminate a small agency that counts endangered salmon in the Columbia River."

"Senators-in-Chief: Congress has no Constitutional power to micromanage a war."This editorial appears today in The Wall Street Journal.Posted at 07:54 AM by Howard Bashman"ABC News reporter from Cotaco writes Supreme Court book": The Decatur (Ala.) Daily contains this article today. The article manages to even the score with New York Times book reviewer Michiko Kakutani for misspelling Jan Crawford Greenburg's last name when first mentioned in this week's review of Jan's new book, as The Decatur Daily refers to Ms. Kakutani using the pronoun "he."

By the way, I had the pleasure at last night's book launch party to meet Jan's parents -- they still live in Cotaco, Alabama, a town located in the northern part of the State, just south of Huntsville -- and they are two wonderful people who are justifiably proud of their daughter's many noteworthy achievements.Posted at 07:44 AM by Howard Bashman

Wyoming's prison system did not violate the due process rights of hermaphrodite probation violater by keeping him/her in solitary confinement for 14 months, Tenth Circuit holds: You can access yesterday's ruling of the U.S. Court of Appeals for the Tenth Circuit at this link.

Yesterday, a unanimous three-judge panel of the U.S. Court of Appeals for the Fifth Circuit issued a ruling affirming the former student's conviction under the Computer Fraud and Abuse Act for intentionally accessing a protected computer without authorization and recklessly causing damage in excess of $5,000. The decision also upholds an award of over $170,000 in restitution. Press releases that the local U.S. Attorney's Office issued in connection with the former student's conviction and sentence can be accessed here and here, respectively.Posted at 06:30 AM by Howard Bashman

Wednesday, January 24, 2007

Programming note: Due to my attendance at a book launch party this evening in Washington, DC, I'll be away from the computer for a bit. New posts will appear online here Thursday morning.

Update: ABC News knows how to host a book launch party. It was wonderful to visit with so many readers of this blog at the event. And Dahlia Lithwick is just as wonderful in person as she is in print, but far more huggable.Posted at 02:00 PM by Howard Bashman

Today's rulings of note from the U.S. Court of Appeals for the Seventh Circuit: A teacher at a public elementary school in Monroe County, Indiana claimed that she was fired from that job because she advocated, during a current-events session in class, an end to the fighting in Iraq. The teacher filed suit under the federal civil rights act to challenge her firing as violative of her First Amendment rights. Today, a unanimous three-judge panel, in an opinion by Chief Judge Frank H. Easterbrook, affirms the entry of summary judgment dismissing the teacher's complaint. Chief Judge Easterbrook's opinion concludes that "the first amendment does not entitle primary and secondary teachers, when conducting the education of captive audiences, to cover topics, or advocate viewpoints, that depart from the curriculum adopted by the school system."

And a second decision issued today, in which Chief Judge Easterbrook also wrote the opinion of the court, addresses whether the case under review represents an instance of "[c]rafty litigants [who] thought that they could evade the limits on interlocutory review by asking the district judge to dismiss the suit with leave to reinstate once an appeal had been resolved." As it turns out, the answer to that question is "no." Senior Circuit Judge Richard D. Cudahy adds a short concurring opinion that begins, "I agree completely with the majority, but write separately to comment in greater detail on what I think is an important aspect of the confusing issue of appellate jurisdiction."Posted at 01:30 PM by Howard Bashman

"Scooter's tragic innocence: Why my friend Scooter Libby is loyal to Bush, Cheney and an arrogant administration whose values are not his own." Nick Bromell has this essay today at Salon.com.Posted at 11:50 AM by Howard Bashman"Fight for courthouse Bible goes on after it's removed": The Houston Chronicle today contains this article reporting on oral argument yesterday on rehearing en banc before the U.S. Court of Appeals for the Fifth Circuit.

From the "Readers say the nicest things" file: The author of the "Statute of Frogs" blog writes, "Apparently Howard Bashman really does read absolutely everything." If only that were true!

And a reader from Los Angeles emails:

Just a note of appreciation for all the effort you put into How Appealing. It's wonderful. I was going to write that it saves me so much time, but what it really does is allow me to read much more that is helpful and interesting to me in the time I have available.

I suppose you get a lot of letters thanking you, but your website is so valuable to me that I couldn't resist adding myself to the list.

I thank the author of that email for those very kind words.Posted at 11:40 AM by Howard BashmanMichigan Supreme Court Justice Elizabeth A. Weaver calls for the creation of an "Independent Commission to Investigate Supreme Court Controversy": A reader from the State of Michigan forwards this document that Justice Weaver sent today to Michigan's Governor and legislative leaders.

And at National Review Online's "Bench Memos" blog, Ed Whelan quotes a passage from the book that, according to Ed, "illustrates that Greenburg doesn’t suffer from the political correctness endemic among so many of her journalistic colleagues."

I look forward to reading the book on my train ride down to Washington, DC this afternoon to attend a book launch party there this evening.Posted at 11:08 AM by Howard Bashman

On today's broadcast of NPR's "Morning Edition": The broadcast contained audio segments entitled "Poor Memory Will Be Libby's Perjury Defense" (featuring Nina Totenberg) and "Catholic Church in UK Fights Gay Adoption." RealPlayer is required to launch these audio segments.Posted at 10:58 AM by Howard Bashman"She'll keep veil in new hearing": The Detroit Free Press today contains an article that begins, "Ginnnah Muhammad, the Muslim who lost her small-claims case in Hamtramck's 31st District Court in October because she refused a judge's order to remove her veil while testifying, has been granted a new hearing. The judge's decision triggered international reaction, particularly in Britain, where debate rages about whether wearing the veil is a statement of separation."

"Judge weighs defamation lawsuit against Web site": The Pittsburgh Post-Gazette today contains an article that begins, "What began in June as a reaction to lowbrow Internet postings evolved yesterday in an Allegheny County courtroom into a highbrow, point-counterpoint oral argument -- a debate, still unresolved by Judge R. Stanton Wettick Jr., about Pennsylvania's jurisdiction over a Miami-based Web site. In May, that site, www.dontdatehimgirl.com, allowed anonymous subscribers to post statements about Todd J. Hollis, a Pittsburgh lawyer."

"Gonzales says the Constitution doesn't guarantee habeas corpus; Attorney general's remarks on citizens' right astound the chair of Senate judiciary panel": Bob Egelko has this article today in The San Francisco Chronicle.Posted at 08:37 AM by Howard Bashman"Panama's Noriega set to be released; This year, Panama's ex-leader Manuel Noriega may leave a South Miami-Dade prison where he's been since 1990": Today's edition of The Miami Herald contains an article that begins, "Former Panamanian dictator Manuel Antonio Noriega, imprisoned in South Miami-Dade on drug-trafficking and racketeering convictions since 1990, will be released on Sept. 9 -- due in part to good behavior and other credits. Noriega, the military ruler toppled by a massive U.S. invasion of his country in late 1989, was automatically eligible for parole after serving close to two-thirds of his 30-year federal sentence."Posted at 08:25 AM by Howard Bashman"Judge Weighs Contested Rail Law; CSX Challenging Suspended D.C. Ban on Hazardous Cargo":This article appears today in The Washington Post.Posted at 08:24 AM by Howard Bashman"Broader Scope for Execution Approved; Some Accomplices In Slayings Could Get Death Penalty": The Washington Post today contains an article that begins, "The Virginia Senate voted to expand capital punishment Tuesday by making accomplices eligible for the death penalty even if they didn't do the killing."Posted at 08:22 AM by Howard Bashman"Media outlets battle it out over free-speech rights; Boycott over rhetoric pits bloggers against KSFO-AM":This article appears today in USA Today.Posted at 08:11 AM by Howard BashmanNon-attorney's use of Quicken software to help another person create a will equates to the unauthorized practice of law, Supreme Court of South Carolina rules: c|net News.com's Declan McCullagh provides this report today.

"Tennessee Court Orders Return of Girl, 7, to Biological Parents": The New York Times today contains an article that begins, "Almost eight years after a Chinese couple living in Memphis placed their daughter into what they thought was temporary foster care, the Tennessee Supreme Court on Tuesday ordered that she be returned to her biological parents."

"State avoided sentencing problem facing California":This article appears today in The Tennessean.Posted at 07:55 AM by Howard Bashman"No court consensus on voter ID laws; Certain rules burden poor, opponents say": Joan Biskupic has this article today in USA Today.Posted at 07:50 AM by Howard BashmanMore DeLay delay? The Associated Press provides a report headlined "Attorneys Set to Argue DeLay Charge" that begins, "The prosecution of former House Majority Leader Tom DeLay could be stalled for weeks or even months while Texas' highest criminal court decides whether a dismissed conspiracy charge against him should be reinstated. The Texas Court of Criminal Appeals is set to hear arguments Wednesday on the conspiracy charge - part of the criminal case that helped drive DeLay from office."Posted at 07:44 AM by Howard BashmanOn this date in "How Appealing" history: One year ago today, as The Associated Press notes here, "Supreme Court nominee Samuel Alito won a 10-8 party-line approval from the Senate Judiciary Committee."

"Diagramming Sentences: The Supreme Court's war on sentencing guidelines." Emily Bazelon has this jurisprudence essay online at Slate.Posted at 11:00 PM by Howard BashmanSOTU Justices: In attendance at tonight's State of the Union Address were Chief Justice John G. Roberts, Jr. and Associate Justices Anthony M. Kennedy, Stephen G. Breyer, and Samuel A. Alito, Jr. Reuters provides this photo.Posted at 10:57 PM by Howard Bashman"Ex-dictator Noriega to be released Sept. 9": El Nuevo Herald provides a report that begins, "It's official and final: Former Panamanian dictator Manuel Antonio Noriega, held in Miami-Dade on charges of drug trafficking and money laundering, will be released from prison on Sept. 9 after completing his sentence. The news was revealed to El Nuevo Herald by Noriega's attorney, Frank Rubino. The release order appears on the official Web page of the U.S. Bureau of Prisons."Posted at 10:54 PM by Howard Bashman"Libby Defense Portrays Client as a Scapegoat": Neil A. Lewis will have this article Wednesday in The New York Times.

"Padilla lawyers blasted for wiretap leak":This article appears today in The Miami Herald.Posted at 10:32 PM by Howard Bashman"Garrow's gushing review": At the "LawBeat" blog, Mark Obbie has an interesting post today in which he writes that "if Garrow's take on [ABC News correspondent Jan Crawford Greenburg's new book] is true and the scoops hold up, I predict the opposite effect: emboldening the Supreme Court beat reporters to reach out more to the justices, and possibly reinvigorating a beat in the eyes of media bosses who've gradually cut it back to a nub."Posted at 07:33 PM by Howard Bashman"Libby Jury Hears Two Sides of CIA Leak Case":This audio segment (RealPlayer required) featuring Nina Totenberg appeared on this evening's broadcast of NPR's "All Things Considered."Posted at 07:28 PM by Howard BashmanAvailable online from SSRN:Robert Justin Lipkin has an article titled "Which Constitution? Who Decides?" (abstract with link for download). According to the abstract, the article "recommends instituting a congressional override to reverse Supreme Court decisions when the electorate, through their representatives in Congress, regards those decisions to be unconstitutional."

And Seth Barrett Tillman has an essay titled "Senate Termination of Presidential Recess Appointments" (abstract with links for download) in which he argues that "as a simple straight forward textual matter the Senate majority can terminate a presidential recess appointment by terminating their session, i.e., the session that meets following a presidential intersession recess appointment."

"Carter's judicial selection process a hot topic at event; Ohio academic says former president's confirmation tactics helped to shape the current system--for better and for worse":This article (free access) appears today in The Fulton County Daily Report.Posted at 05:37 PM by Howard Bashman"Supreme Court Strikes Down California Sentencing Rules":This segment (transcript with links to audio and video) featuring Marcia Coyle of The National Law Journal appeared on yesterday's broadcast of the PBS program "The NewsHour with Jim Lehrer."Posted at 05:20 PM by Howard Bashman"11th Amendment Immunity Waived by Requesting an Interference Proceeding": "Patently-O: Patent Law Blog" provides this post. And my earlier coverage appears here.Posted at 05:14 PM by Howard Bashman"Rehnquist's Stay on Court Forced O'Connor Out; Death Created Double Vacancy Chief Justice Feared": Jan Crawford Greenburg has this written report online at ABCNews.com.Posted at 03:15 PM by Howard Bashman"Chinese Parents Win OK to Reclaim Girl": The Associated Press provides a report that begins, "The Tennessee Supreme Court cleared the way Tuesday for a Chinese couple to be reunited with the daughter they had placed in foster care with an American family nearly eight years ago."

"Christian activists vow to appeal dismissal of freedom-of-speech suit": The Philadelphia Inquirer today contains an article that begins, "Christian activists yesterday promised to appeal the dismissal of their federal court claim that Philadelphia officials infringed on their freedom of speech when they blocked anti-homosexual protesters at a 2004 Center City gay festival."

"Appeals court ruling favors privacy for Internet users; Personal data given to Web provider is protected from subpoena": The Newark Star-Ledger today contains an article that begins, "In the first ruling of its kind in New Jersey, a state appeals court said yesterday computer users can expect the personal information they give their Internet provider will be considered private. A three-judge panel said a computer user whose screen name hid her identity has a 'legitimate and substantial interest in anonymity.'"

"Court likely ends suit over beating at rally": The Philadelphia Inquirer today contains an article that begins, "A federal appeals court refused yesterday to revive civil-rights claims against Gov. Rendell, District Attorney Lynne M. Abraham, and Teamsters Local 115, part of a lawsuit filed eight years ago by a man who says he was beaten and falsely prosecuted after protesting a 1998 appearance by President Clinton."

According to the article, "The Adamses' appeal posed an unusual problem for the Third Circuit. All three judges on the panel were specially named to hear the appeal after the Adamses' lawyer asked the Third Circuit's own judges to recuse themselves because Rendell's wife, Marjorie O. Rendell, is a Third Circuit judge appointed by Clinton in 1997."

"University of Phoenix Asks U.S. Supreme Court to Curb Abuse of False Claims Act":This press release announces a petition for writ of certiorari that former Solicitor General Theodore B. Olson filed yesterday.Posted at 12:15 PM by Howard BashmanFederal Circuit holds that University of Missouri's request for and participation in Patent and Trademark Office's patent interference proceeding waived that university's ability to invoke Eleventh Amendment immunity when opposing party sought judicial review of the PTO's ruling: You can access today's ruling of the U.S. Court of Appeals for the Federal Circuit at this link.Posted at 12:00 PM by Howard BashmanU.S. Court of Appeals for the Federal Circuit proposes to amend its local rules to require electronic filing of briefs and appendices: According to yesterday's announcement of the proposed local rule changes, the Federal Circuit plans to "require the filing of a digital version of every brief and appendix filed by a party represented by counsel, unless counsel certifies that submission of a brief or appendix in digital format is not practical or would constitute hardship." The deadline for commenting on the proposed rule changes is February 16, 2007.

"'Gone Wild' figure is fined $500,000; Joe Francis also must do community service for not documenting ages of everyone in his videos": The Los Angeles Times contains this article today.Posted at 08:23 AM by Howard Bashman"Libby Jury Is Chosen; Arguments Set to Start":This article appears today in The Washington Post.

"Canadian to Remain on U.S. Terrorist Watch List": The New York Times today contains an article that begins, "Despite a Canadian inquiry that cleared a Syrian-born Canadian citizen of any terrorist ties, the Bush administration has formally refused a Canadian government request that it remove the man, Maher Arar, from the terrorist watch list, saying that the United States has secret information justifying his inclusion."

Garrow's review begins, "You know the name 'Woodward,' as in Bob Woodward, whose insider-based accounts of Washington decision-making have been runaway bestsellers since Richard Nixon's downfall. Well, now you should remember the name Greenburg because ABC News reporter Jan Crawford Greenburg's account of what's been happening at the U.S. Supreme Court in recent years is the richest and most impressive journalistic look at the panel since Woodward co-wrote 'The Brethren' in 1979."

Garrow goes on to write that "There are so many standout stories in 'Supreme Conflict' that the book is an absolute must-read for anyone interested in the court." You can access the complete review at this link.Posted at 06:44 AM by Howard Bashman

"The Press and the Watada Trial": In the February 5, 2007 issue of The Nation, Marc Cooper will have an essay that begins, "When Army Lieut. Ehren Watada's court-martial opens on February 5, more than Watada's refusal to deploy to Iraq may be put on trial. Also at stake is the independence of the press, especially some of its more vulnerable members."Posted at 05:35 PM by Howard Bashman"Death Row Dean Wins Temporary Reprieve": The Associated Press provides a report that begins, "Texas' longest-serving condemned prisoner, who had been set to die this week after more than 31 years on death row, won a reprieve Monday from the U.S. Supreme Court."Posted at 05:28 PM by Howard BashmanThe Eleventh Circuit delivers even worse news to some guy who claims to have invented EPCOT: Back on November 2, 2006, a unanimous three-judge panel ruled against the supposed EPCOT inventor on the merits but set aside some $120,000 in costs taxed against him in the district court. My earlier coverage of that ruling appears at this link.

Today, following sua sponte panel reconsideration, the same three-judge panel has issued a revised opinion upholding the district court's entire original award of costs.Posted at 05:23 PM by Howard Bashman

"We must decide whether a prospective commercial airline passenger, who presented no identification at check-in, and who voluntarily walked through a metal detector without setting off an alarm, can then prevent a government-ordered secondary screening search by stating he has decided not to fly and wants to leave the terminal." So began an opinion that a unanimous three-judge panel of the U.S. Court of Appeals for the Ninth Circuit issued on March 17, 2006. The panel ruled that the prospective passenger could not avoid the secondary screening search by declaring that he no longer wished to fly but instead wanted to leave the terminal. My earlier coverage of that ruling appeared in a post titled "Don't meth with airport security."

The book is a companion to the four-hour PBS series "The Supreme Court," which will debut on January 31, 2007 and conclude on February 7, 2007. A web site devoted to that forthcoming PBS series can be accessed at this link.

P.S. The copy of the book that I received from its publisher also includes a DVD providing an advance look at both parts of the PBS program. Once I get a chance to view the DVD, I'll let you know whether the PBS broadcast is worth a look.Posted at 12:03 PM by Howard Bashman

Denniston also reports that the Court today issued its ruling in Osborn v. Haley, No. 05-593, addressing whether a particular lawsuit against a federal employee was properly removed from state court to federal court on the certification of the Attorney General of the United States. Oral argument in this case occurred on October 30, 2006, and you can access the transcript at this link.

And the Court's third and final opinion in an argued case issued in Jones v. Bock, No. 05-7058, addressing what is necessary for a prisoner to administratively exhaust a claim under the Prison Litigation Reform Act. This case was also argued on October 30, 2006, and you can access the transcript at this link.

"Monument's removal adds twist to Bible display appeal; County attorney will tell federal court that case is moot; plaintiff questions timing": The Houston Chronicle today contains an article that begins, "Days before a major appeals court hearing on a Bible display at a Harris County courthouse, the county has removed a monument that once contained the Bible. County officials say the move Friday was part of the renovation of the old Civil Courts Building, and was unrelated to the hearing scheduled for Tuesday in New Orleans before the 5th U.S. Circuit Court of Appeals. But County Attorney Mike Stafford will tell the court Tuesday that the temporary storage of the monument makes the case moot, in addition to arguing the county's position that a lower court was wrong in ruling that the Bible display was unconstitutional."

"Politics and prosecutors": The Chicago Tribune contains this editorial today.Posted at 08:15 AM by Howard Bashman"Financing terrorists is not about speech; The high court is right: Prosecuting alleged contributors to a 'terrorist' group isn't a 1st Amendment issue."This editorial appears today in The Los Angeles Times.Posted at 08:10 AM by Howard Bashman"Footnote on adultery turns into a spotlighted affair; A Michigan judge sparks debate after pointing out that extramarital sex can mean life in prison": The Los Angeles Times contains this article today.

"Wiretap shift raises questions":This editorial appears today in The St. Petersburg Times.Posted at 08:03 AM by Howard Bashman"Roe's 34th year sees a new Washington": The Washington Times today contains an article that begins, "Today marks the 34th anniversary of the Supreme Court's Roe v. Wade decision, and as thousands descend on the District to protest abortion, some new twists have emerged on the political landscape, including a Democrat-controlled Congress, an upcoming Supreme Court decision and a burgeoning presidential race."

"Unabomber Wages Legal Battle to Halt the Sale of Papers":This article will appear Monday in The New York Times.Posted at 11:18 PM by Howard Bashman"The Miers Mess": ABC News correspondent Jan Crawford Greenburg has this post today at her new blog, "Legalities."

"Open or shut: Hicks case may be empty." Monday's edition of The Sydney Morning Herald contains an article that begins, "The two embassies that David Hicks was accused of staking out as part of his al-Qaeda training were abandoned at the time."

"Supreme Court, Churchill version; Mock trial by students at Livonia high school based on case involving Alaska teen":This article appears today in The Detroit Free Press.Posted at 06:55 PM by Howard Bashman"Mental health issue drives abortion debate": The Wichita Eagle today contains an article that begins, "When a fetus is healthy, a woman can have a late abortion in Kansas only if doctors say it is necessary to save her life or to prevent 'substantial and irreversible impairment of a major bodily function.' That includes damage to her mental health. To abortion opponents, the mental health exception is a loophole that allows abortion late in pregnancy. To abortion-rights supporters, it is a necessity that allows women, their families and their doctors to decide what to do about crisis pregnancies."Posted at 06:54 PM by Howard Bashman"Texas Horse Slaughterhouses Violate Law, Court Says": Bloomberg News provides this report.

And commonhorsesense.com has issued a news release that begins, "The decision by the U.S. Fifth Circuit Court of Appeals comes as a complete surprise, because the lower court had rendered a well reasoned decision based on the merits of the case."

"Don't rush to judge this court; Missourians are working to name a courthouse after native son Rush Limbaugh--but not the one you think": The Chicago Tribune contains this article today.Posted at 03:55 PM by Howard Bashman"At the Supreme Court, an unlikely new hero; Afghanistan's chief justice has launched a quiet revolution, targeting corrupt judges and demanding accountability in the country's long-inept judiciary":This article appears today in The Chicago Tribune.Posted at 03:54 PM by Howard Bashman"Judges: Plants must be closed." The Fort Worth Star-Telegram today contains an article that begins, "Two North Texas horse-slaughtering plants, which annually process thousands of pounds of horsemeat for human consumption overseas, are violating a 1949 state law and must shut down, a federal appeals court panel has ruled."

"Is there a post-abortion syndrome? The next Roe v. Wade fight." Emily Bazelon will have this cover story in tomorrow's issue of The New York Times Magazine.Posted at 10:00 PM by Howard Bashman"Illiniwek fight gets a twist; Tribal official says he has headdress Sioux want back": Sunday's edition of The Chicago Tribune will contain an article that begins, "Last week's demand by the Oglala Sioux tribe that the University of Illinois return the regalia used by Chief Illiniwek, especially an eagle-feathered war bonnet, caught many by surprise. The request particularly puzzled some university officials, who believed the headdress had been returned to the tribe in the early 1990s. On Friday they found written evidence that they were right, and a tribal official acknowledged that he has the headgear, including the eagle feathers."

"Federal Appeals Court Declares Horse Slaughter in Texas Illegal; Two of the Nation's Three Horse Slaughter Plants Face Closure, Criminal Charges": The Humane Society of the United States has issued this press release.

"Poor litigants dealt legal blow; No fund award for tiny store up against Canada Customs, Supreme Court rules": The Toronto Star today contains an article that begins, "Supporters of a small Vancouver bookstore caught in an expensive legal fight with Canada Customs say governments face new pressure to improve access to the justice system now that the country's highest court has confirmed litigants stand little chance of having wealthier opponents fund their cases. In a 7-2 ruling yesterday, the Supreme Court of Canada refused to order the federal government to pay legal costs in advance to Little Sisters Book and Art Emporium, a gay and lesbian bookstore challenging Customs' enforcement practices and its seizure of four books."

You can access online the "Statement Of Illinois Attorney General Madigan On Parental Notice Of Abortion Litigation" at this link, while the motion filed yesterday in federal district court can be accessed here.Posted at 12:45 PM by Howard Bashman

"Oregonian will oversee Guantanamo; Cameron A. Crawford gains the rank of brigadier general for the job":This article appears today in The Oregonian.Posted at 12:40 PM by Howard Bashman"DA backs death penalty for violent criminals; Watkins says he'll push for it in new Miller-El trial": The Dallas Morning News today contains an article reporting that "The newly elected Mr. Watkins said he plans to seek a new trial and the death penalty for Thomas Miller-El, whose 1986 death penalty conviction was overturned by the U.S. Supreme Court over concerns that prosecutors had intentionally excluded minorities from his jury."Posted at 12:38 PM by Howard Bashman"Attorney general's Day 1 included missed deadline; Assistant admits 'snafu' in Medicaid case": Yesterday's edition of The Columbus Dispatch contained an article that begins, "A missed deadline may have cost the state of Ohio an opportunity to participate in a legal case deemed 'extremely important' to whether Medicaid recipients may choose their own service providers. On the day Marc Dann was sworn in as Ohio attorney general, a junior attorney in his office missed a 5 p.m. deadline for asking the Ohio Supreme Court to review an appeals court's decision requiring Medicaid providers to enter into contracts with county boards of mental retardation and developmental disabilities."Posted at 12:35 PM by Howard Bashman"Chafee's choice for federal judge rankles his onetime friend": The Providence Journal today contains this article about a current vacancy on the U.S. Court of Appeals for the First Circuit.Posted at 12:08 PM by Howard Bashman"Eisenberg regains license a third time; Attorney known for outrageousness":This article appears today in The Milwaukee Journal Sentinel. You can access yesterday's 4-3 ruling of the Supreme Court of Wisconsin at this link.Posted at 10:32 AM by Howard Bashman"High court to review campaign finance law": David G. Savage has this article today in The Los Angeles Times.Posted at 10:11 AM by Howard Bashman"High court slams door on delay of Prop 2; U.S. Supreme Court won't hear case; decision leaves Mich. affirmative action ban in effect":This article appears today in The Detroit News.

"Judge pushes for probe of state Supreme Court": The Detroit News today contains an article that begins, "Michigan Supreme Court Justice Elizabeth Weaver on Friday ramped up her feud with her four fellow Republican colleagues on the state's highest court, calling for the creation of a three-member commission to investigate the 'misconduct and abuse of power' she says is rampant on the court."

"Did 9th Circuit Judges Go AWOL From Oral Argument? One way 'death is different' in the 9th Circuit." The brand new installment of my "On Appeal" essay for law.com can be accessed at this link.Posted at 12:13 AM by Howard Bashman

Texas is home to two of the three slaughterhouses in the United States that process horsemeat for human consumption, with the third operating in Illinois. After several decades of operations, the Texas Attorney General informed them that Texas is one of a handful of states that prohibits their activities. Whether he informed them correctly is the subject of this case.

We VACATE the district court's permanent injunction barring the prosecution of slaughterhouses for processing, selling and transporting horsemeat for human consumption.

Thus, as a result of today's ruling, Texas slaughterhouses that process horsemeat can be prosecuted for violating Texas law prohibiting that activity.

"NY Court: FBI May Have Coerced Filmmaker." The Associated Press provides a report that begins, "An effort by the FBI and federal prosecutors to remove a short fictional film about a military takeover of New York City from the Internet may have violated the First Amendment, a federal appeals court said Friday."

"Courts & the Law: Figure of Speech." In next Monday's issue of CQ Weekly, columnist Kenneth Jost will have an essay that begins, "School administrators around the country are punishing students for speaking out on issues ranging from abortion and homosexuality to drug use and the war in Iraq. And the Supreme Court appears poised to side with school administrators and -- for no compelling reason -- limit a landmark 1960s precedent aimed at safeguarding pupils' free-speech rights."Posted at 08:20 PM by Howard Bashman"Justices to decide passenger police search case": Reuters provides this report.

"Mich. Schools Won't See Delay in New Law": The Associated Press provides a report that begins, "The U.S. Supreme Court on Friday rejected a bid to give three state universities more time to comply with parts of Michigan's new law banning some types of public affirmative action programs."

On Sunday's broadcast of the ABC News program "This Week with George Stephanopoulos": National Journal's "The Hotline" reports today that "ABC's Jan Crawford Greenburg talks about her new book on SCOTUS." The book will go on sale next Tuesday, January 23rd, and I'm looking forward to reading it. I've already heard good things about the book from one of the few people who've been allowed an advance look. I was even in the same room as a copy of the book during my trip to Washington, DC last week, but I had no luck wrestling the book away from its author.Posted at 03:45 PM by Howard Bashman"Brown and the Limits of Originalism": The new issue of The Harvard Law Record contains an article that begins, "Can the Court's ruling in Brown v. Board of Education be defended with an original understanding of the Constitution? Last Tuesday, students filled Pound 107 to hear Professor Michael Klarman and Judge Michael McConnell debate the question while enjoying pizza provided by the Federalist Society."Posted at 03:25 PM by Howard Bashman"Gonzales' Trojan Horse: FISA-approved surveillance may not be a civil-liberties coup." Patrick Radden Keefe has this jurisprudence essay online at Slate.Posted at 02:55 PM by Howard Bashman"Microsoft Case Lawyers Claim Violation": The Associated Press provides a report that begins, "The plaintiffs in Iowa's class-action antitrust lawsuit against Microsoft Corp. claim they have uncovered information that indicates the software company is violating its 2002 agreement with the U.S. Department of Justice."

"This case arises out of the efforts of the Federal Bureau of Investigation and the United States Attorney's Office for the Southern District of New York to remove from the internet a video that they may have believed posed a danger to the public safety." So begins an opinion that the U.S. Court of Appeals for the Second Circuit issued today.

The ACLU provides additional background on the case here, here, and here.

"A Guantanamo Detainee's Letters Home": Libby Lewis has this written report today at NPR.org. The report provides online access to the letters.Posted at 11:45 AM by Howard BashmanPittsburgh attorney files brief in opposition to DontDateHimGirl.com's motion to dismiss his lawsuit against that web site: You can access the brief in opposition at this link, while the appendix filed in support of the brief can be accessed here.

"All opinions should be online, lawyer argues":This article appears today in The Madison County (Ill.) Record. The article mentions last week's installment of my weekly "On Appeal" column for law.com headlined "It's Time to Abolish 'Invisible' State Appellate Court Rulings."Posted at 09:14 AM by Howard Bashman"Detainee DNA may be put in database; ACLU says plan violates privacy": Richard Willing has this front page article in today's edition of USA Today.Posted at 08:57 AM by Howard Bashman"Sioux to Illini: Return regalia; Tribe says attire's use is degrading." The Chicago Tribune today contains an article that begins, "In a 1982 halftime ceremony at Memorial Stadium, a 93-year-old Oglala Sioux chief and medicine man presented the University of Illinois with tribal regalia for use by the university's mascot, Chief Illiniwek. The university paid $3,500 for the moccasins, blanket, peace pipe pouch, breastplate and war bonnet with 90 eagle feathers, all owned by Sioux Chief Frank Fools Crow, according to the university's archives. On Thursday, Oglala Sioux tribal members, including Fools Crow's grandson, asked for it all back."

"Jury Selection in Libby Trial Moves Slowly Because of Bias": Neil A. Lewis has this article today in The New York Times.Posted at 08:30 AM by Howard Bashman"Congressmen intercede for 2 reporters; The San Francisco Chronicle writers have been subpoenaed over their confidential sources in the BALCO steroids case": Today in The Los Angeles Times, Henry Weinstein has an article that begins, "The new chairman of the House Judiciary Committee and an influential Republican congressman asked Atty. Gen. Alberto R. Gonzales on Thursday to withdraw grand jury subpoenas to two San Francisco Chronicle reporters facing 18 months in federal prison for refusing to disclose their confidential sources of information about steroid use in professional sports."

"Obama Left Mark on HLS; Profs fondly recall Law School alum as he launches presidential bid": The Harvard Crimson contains this article today.Posted at 08:02 AM by Howard Bashman"Dems put eminent domain reform on back burner":This article appears today in The Stamford (Conn.) Advocate.Posted at 08:00 AM by Howard Bashman"Abortion's elusive middle ground": Columnist Ellen Goodman has this op-ed today in The Boston Globe.Posted at 07:55 AM by Howard Bashman"Law Firms Are Urged Not to Force Retirements":This article appears today in The New York Times.Posted at 07:42 AM by Howard Bashman"Unfettered Debate Takes Unflattering Turn in Michigan Supreme Court": Adam Liptak has this article today in The New York Times.Posted at 07:35 AM by Howard Bashman"Surging and Purging": Today in The New York Times, columnist Paul Krugman has an op-ed (TimesSelect temporary pass-through link) that begins, "There's something happening here, and what it is seems completely clear: the Bush administration is trying to protect itself by purging independent-minded prosecutors."

"Why Both Cully Stimson - Who Suggested a Boycott of Firms Representing Detainees Pro Bono - and Some of His Critics Are Off-Base": Vikram David Amar has this essay online today at FindLaw.Posted at 06:44 AM by Howard Bashman

Available online from law.com: An article headlined "The Record of Achievement No Lawyer Wants" begins, "As he has done for years, California Supreme Court Clerk Frederick Ohlrich warned attorneys just before oral arguments last week to be sure they got the justices' names correct when addressing them. He had forgotten to give that warning before arguments the day before, Ohlrich said, and, sure enough, one lawyer wound up referring to Justice Ming Chin as Justice Ming."

"Supreme Court justices will teach, lecture at UA during next 2 years": The Arizona Daily Star provides a news update that begins, "Current Supreme Court Justices John Roberts and Stephen Breyer will join retired Justice Sandra Day O'Connor as guests of the UA's law school over the next two years."

A newsbrief published today in The Baltimore Sun reports: "The Court of Appeals said Friday that Maryland's grandparent visitation law was constitutional but that a grandparent must first show that a parent is unfit or demonstrate that there are exceptional circumstances before a court can consider whether visitation is in the child's best interests. Enacted in 1981 and amended in 1993, Maryland's law allows a court to grant grandparents visitation rights if it determines that it is in the best interests of the child. More than a decade of case law had not required grandparents to meet the standards established by Friday's ruling."Posted at 05:04 PM by Howard Bashman

"A judicial truce: Bush was right to drop four controversial picks for the bench; Now Democrats can reciprocate."This editorial appeared yesterday in The Los Angeles Times. (Thanks to Ed Whelan for the pointer.)Posted at 04:53 PM by Howard Bashman"Pentagon Sets Rules for Detainee Trials": The Associated Press provides this report.Posted at 04:33 PM by Howard Bashman"Williams gets life in truck deaths trial": The Houston Chronicle provides a news update that begins, "On his 36th birthday, Tyrone Williams was sentenced to life in prison today for his role in the 2003 human-smuggling scheme that left 19 illegal immigrants dead. The trucker was convicted last month of 58 smuggling counts. The same jury determined his punishment. The death penalty was an option for 20 counts - the overall conspiracy charge and one count for each person who died."

"The court reconsidered this case en banc in order to determine whether an arbitration award must be vacated for 'evident partiality,' 9 U.S.C. §10(a)(2), where an arbitrator failed to disclose a prior professional association with a member of one of the law firms that engaged him." So begins the en banc majority opinion, written by Chief Judge Edith H. Jones, that the U.S. Court of Appeals for the Fifth Circuit issued today. By a vote of 11-5, the court has answered that question in the negative.

The lead dissenting opinion, written by Senior Circuit Judge Thomas M. Reavley, begins:

In 1968 the Supreme Court held that an arbitral award could not stand where the arbitrator had failed to disclose a past relationship that might give the impression of possible partiality. The Court has never changed that holding; it is the law that rules us today. But the majority of this court disapprove of that law because they prefer to protect arbitrators and their awards when they fail to disclose prior relationships with parties or counsel. They therefore change the law for this case and, to make it appear as if their transgression does not matter, trivialize their report of the past relationship. I dissent because this court may not overrule a decision of the Supreme Court.

Judge Reavley wrote the unanimous three-judge panel's opinion that reached a result opposite from the result that the en banc majority reaches today.Posted at 03:05 PM by Howard Bashman"Panel Grills Gonzales Over Spy Program": The Associated Press provides a report that begins, "Senators demanded details Thursday from Attorney General Alberto Gonzales about new orders putting the government's domestic spying program under court review - and questioned why it took so long to do so. Meanwhile, the presiding judge of the Foreign Intelligence Surveillance Court said she had no objection to disclosing legal orders and opinions about the program that targets people linked to al-Qaida, but the Bush administration would have to approve release of the information."

"Maybe Bush didn't back down on wiretaps: Stop celebrating -- it's not yet clear whether the administration really intends to start obeying the law." Glenn Greenwald has this essay today at Salon.com.Posted at 12:18 PM by Howard Bashman"Happy Birthday, Roe v. Wade: On the ruling's anniversary, its fans should celebrate another case, too." Law Professor Kenji Yoshino has this jurisprudence essay online at Slate.Posted at 12:15 PM by Howard Bashman"Objections sustained": The Palm Beach Post today contains an editorial that begins, "Already, there are at least four reasons why Democratic control of the Senate has helped the country. Those reasons are: Terrence Boyle, William Haynes, William Myers III and Michael Wallace."Posted at 12:05 PM by Howard Bashman"Bryan Garner routinely interviews judges and others on the art of writing. LawProse maintains a one-of-a-kind video archive of these educational interviews." Thanks to Amber Taylor of the "Prettier Than Napoleon" blog for drawing to my attention this web site with huge time suck potential.

Airplanes now have assault-resistant cockpit doors, but what protects a passenger bus driver from a passenger's violent assault? A unanimous three-judge panel of the U.S. Court of Appeals for the Sixth Circuit has today issued a decision affirming an $8 million compensatory damages judgment in favor of a Greyhound Bus passenger who was rendered a paraplegic as a result of a crash that occurred when another passenger violently assaulted the driver of the bus.

A pre-9/11 Salon.com article on the subject of airplane cockpit doors can be accessed here.

"Court: Non-sex offender to stay on list; 'Draconian' ruling on Benton Harbor man's case may have broad implications, lawyer says." The Detroit News today contains an article that begins, "A Benton Harbor teacher's name must remain on the Sex Offender Registry, even if he was not convicted of a sex offense listed on the registry, according to an appeals court ruling."

"Michigan responds on affirmative action": Lyle Denniston has this post at "SCOTUSblog."Posted at 09:19 AM by Howard Bashman"U.S. ceases warrantless spy operation; Domestic surveillance will be conducted only with a court order":This article appears today in The Los Angeles Times.

"Lawmaker: Anti-Cohabitation Law Wrong." The Associated Press provides a report that begins, "In North Dakota, a man and woman who live together without being married are committing a sex crime. It's right there in the law, a state senator says, alongside the prohibitions against adultery, incest and indecent exposure. Tracy Potter, a freshman Democrat from Bismarck, is asking the state Legislature to end North Dakota's status as one of seven states that have anti-cohabitation laws on the books. It has rejected three such attempts since 1990."Posted at 09:05 AM by Howard Bashman"Officer facing court-martial denounces war": The Los Angeles Times today contains an article that begins, "The nation's first Army officer to refuse deployment to Iraq urged the public in a statement Wednesday to 'stop the war so that the death and sacrifices of American soldiers will not be in vain' after a major legal setback in his court-martial proceedings."Posted at 09:02 AM by Howard Bashman"Judge is in race for U.S. attorney job; Dickran Tevrizian was asked to apply as L.A.'s top prosecutor, a move many find unusual because he could retire or be a private jurist": Henry Weinstein and Greg Krikorian have this article today in The Los Angeles Times.Posted at 08:57 AM by Howard Bashman"High Court Hears 3 Death Penalty Cases; Capital Punishment Accounts for Larger Share of Justices' Smaller Workload": Robert Barnes has this article today in The Washington Post.

"More info sought on gay divorce case": The Providence (R.I.) Journal today contains an article that begins, "The Rhode Island Supreme Court says it needs more information before it can decide if the state Family Court has jurisdiction to hear a same-sex divorce case involving two Providence women who married in Massachusetts."Posted at 08:27 AM by Howard Bashman"Md. Wal-Mart law dealt second defeat; U.S. appeals court upholds earlier ruling; Assembly seeks new health care solutions":This article appears today in The Baltimore Sun.

"Show Us The Money: America's Paper Currency Shortchanges the Blind." Cyrus Habib has this op-ed today in The Washington Post.Posted at 08:20 AM by Howard Bashman"Detainee's Letters Give Peek at Life At Guantanamo; Bush Named Ex-Maryland Man One of 14 'High-Value' Prisoners": The Washington Post contains this article today.

"Justices Scrutinize Death Penalty in Texas": Linda Greenhouse will have this article Thursday in The New York Times.Posted at 10:44 PM by Howard BashmanBy an evenly divided 6-6 vote, the Tenth Circuit denies initial hearing in banc of a case involving sentencing procedure under Booker v. United States: According to the dissent from denial of en banc review, the three-judge panel's opinion in this case (also issued today) "injects serious, untoward obstacles to the exercise of the very sentencing discretion by the district courts that Booker was intended to revive. The imposition of a sentence outside the advisory Guideline range in reliance on the discretionary factors in §3553(a) will become painful and complex and will systemically slow the sentencing process."

You can access today's order denying initial hearing en banc, the accompanying dissenting opinion in which three of the six judges who voted in favor of en banc review have joined, and the unanimous three-judge panel's decision in the case at this link.

Here's a question for procedural mavens in the audience: Because this particular Tenth Circuit appeal was already argued before a three-judge panel, and that panel's resulting opinion is what has caused the case to nearly go en banc before the panel's opinion had issued, would such an en banc hearing have constituted "initial" en banc instead of "rehearing" en banc? In my view, once a case is argued and submitted to a three-judge panel for decision in the first instance, any later en banc review would constitute rehearing en banc even if the three-judge panel's decision never issued. The only difference is that this would constitute court-initiated rehearing en banc, instead of litigant-initiated rehearing en banc. Those who disagree or can shed any light on this procedural issue, including any Tenth Circuit judges in the audience, are invited to share their views via email.Posted at 09:15 PM by Howard Bashman

Today's opinion explains that the deadline by which Travelers Indemnity Company had to file its notice of cross-appeal was no later than fourteen days after the opposing party had filed its appeal. Unfortunately, Travelers, represented on appeal by the Simpson Thacher & Bartlett law firm, filed the notice of cross-appeal one day too late because its counsel waited until what they thought was the last day for filing the notice but had "inadvertently calendared the first notice of appeal on their office records as of the day it was received in the lawyers' office, April 27, 2006, rather as of the day it was filed, April 26, 2006, the date made relevant by Rule 4(a)(3)."Posted at 05:05 PM by Howard Bashman

"Supreme Court Reconsiders Death-Penalty Case":This audio segment (RealPlayer required) featuring Dahlia Lithwick appeared on today's broadcast of NPR's "Day to Day."Posted at 04:35 PM by Howard Bashman"Secret Court to Govern Wiretapping Plan": The Washington Post provides a news update that begins, "The Justice Department announced today that the National Security Agency's controversial warrantless surveillance program has been placed under the authority of a secret surveillance court, marking an abrupt change in approach by the Bush administration after more than a year of heated debate."

"The Accidental Epidemic: Please Join Us in the Fight to Cure Clumsiness": Associate Justice William W. Bedsworth of the California Court of Appeal has this quite humorous essay online at law.com.Posted at 04:28 PM by Howard BashmanMom, apple pie, and appellate judges selected on the basis of merit: Pennsylvania Governor Edward G. Rendell, sworn-in yesterday to his second and final term in that office, stated in his inaugural address: "We must select our state appellate court judges on merit. I believe we must have an independent expert panel to ensure that our judiciary includes only the most qualified jurists."

During his first four-year term as Governor, Rendell did not make any progress toward implementing so-called "merit selection" of appellate judges in Pennsylvania. In short, the issue is not popular within the legislative branch, and without the support of the legislative branch a constitutional amendment to implement "merit selection" cannot become law.

U.S. Court of Appeals for the Fourth Circuit affirms invalidation of Maryland's Fair Share Health Care Fund Act, requiring employers with 10,000 or more Maryland employees to spend at least 8% of their total payrolls on employees' health insurance costs: You can access today's ruling, by a divided three-judge panel, at this link.

Today's decision holds that the Maryland law, targeted at Wal-Mart, is preempted by the federal law known as ERISA. Circuit Judge Paul V. Niemeyer wrote the majority opinion, in which Circuit Judge William B. Traxler, Jr. joined. Circuit Judge M. Blane Michael dissented, concluding that ERISA does not preempt the Maryland law.

Judge Posner's opinion notes that "[t]he minimum guidelines sentence for a bank robbery that does not involve the use of a gun is 46 months, and when the consecutive 84-month sentence required by section 924(c)(1) is tacked on to the minimum guidelines sentence, the total is 130 months." The opinion quotes the district judge's statement that "I find a 130 month sentence unreasonable on the facts of this case and contrary to the purposes of sentencing under §3553. Because I have no power to adjust the 84 month consecutive sentence, I have no alternative but to adjust the 46 month guideline part of the sentence so that the sentence, as a whole, is reasonable."

On the federal government's appeal challenging the sentence imposed as unreasonable, the Seventh Circuit today reverses and remand for a resentencing. Today's opinion explains, "Although our review of a sentence that is within the statutory range is deferential, it is not abject; and in this case the unreasonableness of the judge's one-month sentence for the bank robbery is palpable."Posted at 02:05 PM by Howard Bashman

"Democracy and the Third Branch: A Speech by Attorney General Alberto R. Gonzales." The prepared remarks that Attorney General Gonzales intended to deliver this morning at the American Enterprise Institute can be accessed at this link. The remarks are divided into three sections: "Judicial Independence"; "The Proper Role of a Judge"; and "Judicial Selection."Posted at 01:54 PM by Howard Bashman"Secret Court to Govern Wiretapping Plan": The Associated Press provides a report that begins, "The Justice Department, easing a Bush administration policy, said Wednesday it has decided to give an independent body authority to monitor the government's controversial domestic spying program."

"Bush breaks the cycle of partisanship on judges": Today in The Baltimore Sun, Law Professor Carl Tobias has an op-ed that begins, "Bipartisanship is the byword as President Bush embarks on his final two years and Congress convenes with the first Democratic majorities since 1994. Once the 110th Congress assembled, the president had an excellent opportunity to cooperate with Democrats through the nomination of candidates for the 56 lower court openings. Mr. Bush demonstrated his commitment to bipartisanship by not renominating several controversial appellate nominees last week."

My presence at an event in Washington, DC on the evening of Wednesday, January 24th will prevent me from getting to Honolulu in time to see Judge Newman speak on Thursday of next week. Thus, I'll depend on "How Appealing" readers in attendance for a full report.

"7th Circuit: Antarctica is Not a 'Foreign Country' for Tax Purposes." "TaxProf Blog" today provides this post linking to the tax court ruling that the Seventh Circuit affirmed yesterday. My earlier coverage of yesterday's ruling can be accessed here.Posted at 10:30 AM by Howard Bashman"The seven deadly sinners of the Scooter trial: Jury selection begins in the case of former Cheney chief of staff I. Lewis Libby; But are any of the players in this scandal worth rooting for?" Law Professor Jonathan Turley has this essay at Salon.com.Posted at 10:25 AM by Howard Bashman"Court rules in deportation case": Lyle Denniston has this post at "SCOTUSblog." According to Lyle's post, the U.S. Supreme Court's lone opinion in an argued case issued today occurred in Gonzales v. Duenas-Alvarez, No. 05-1629. The case was orally argued on December 5, 2006, and you can access the oral argument transcript at this link.Posted at 10:07 AM by Howard Bashman"Court reinstates Quran lawsuit": The News-Record of Greensboro, North Carolina today contains an article that begins, "A lawsuit that could determine whether Muslims, Jews and other non-Christians can use the holy texts of their faith to affirm courtroom testimony can move forward, the N.C. Court of Appeals ruled Tuesday."

"Sentencing to Resume for Truck Driver": The Associated Press provides a report that begins, "Whether a truck driver intended to kill 19 immigrants trapped in a sweltering trailer and whether he did it in a depraved and cruel manner are among the questions jurors are grappling with as they decide on his sentence."Posted at 08:32 AM by Howard Bashman"Court voids sentence in LAX plot; U.S. appellate panel says Ahmed Ressam's sentence needs to be recalculated because one count was vacated": Henry Weinstein has this article today in The Los Angeles Times.

"Connerly still targeting racial preferences; The ex-UC regent, at USC to speak at a forum, says he plans to put bans on affirmative action on ballots in other states; Critics decry the effort":This article appears today in The Los Angeles Times.Posted at 08:20 AM by Howard BashmanThe blog "Decision of the Day" has moved to a new online address: The new home for that blog can be accessed here.Posted at 08:07 AM by Howard Bashman"U.S. Official Apologizes for Guantanamo Remarks": The Washington Post today contains an article that begins, "A Pentagon official who criticized large U.S. law firms for representing terrorism suspects at the U.S. detention facility at Guantanamo Bay, Cuba, has apologized for his comments, saying that his discussion on a local radio program does not reflect his 'core beliefs.'" You can access Cully Stimson's letter to the editor, published today in The Washington Post, at this link.

"Rehnquist's Skeletons, Part 2: The Supreme Court justice's bad trip." Bonnie Goldstein has this Hot Document online at Slate.Posted at 07:53 AM by Howard Bashman"At Berkeley Law, a Challenge to Overcome All Barriers":This article appears today in The New York Times.Posted at 07:48 AM by Howard Bashman"AG Criticizes Judges for Terror Rulings": The Associated Press provides a report that begins, "Attorney General Alberto Gonzales says federal judges are unqualified to make rulings affecting national security policy, ramping up his criticism of how they handle terrorism cases. In remarks prepared for delivery Wednesday, Gonzales says judges generally should defer to the will of the president and Congress when deciding national security cases."Posted at 07:35 AM by Howard Bashman"The Federal Appeals Court Decision Setting the Final Damages Amount for the Exxon Valdez Oil Spill": Anthony J. Sebok has this essay online today at FindLaw.Posted at 06:45 AM by Howard Bashman

Tuesday, January 16, 2007

"Court Vacates Term of Algerian in Bomb Plot": The New York Times on Wednesday will contain an article that begins, "A federal appeals court on Tuesday vacated the 2005 sentence of an Algerian man convicted of plotting to bomb Los Angeles International Airport."

Once confirmed, this nominee would become the second Circuit Judge Smith currently serving on the Ninth Circuit and the fifth Circuit Judge Smith currently serving on the U.S. Courts of Appeals. The official biographies of the other four, in order of their arrivals on the federal appellate bench, can be accessed here, here, here, and here.Posted at 06:55 PM by Howard Bashman

"Court will not hear nuclear plant threat case": Reuters provides a report that begins, "The Supreme Court refused on Tuesday to decide whether a potential terrorist attack must be considered as part of a U.S. government agency's environmental review of a nuclear power plant's expansion plans."Posted at 05:42 PM by Howard Bashman"Writing About the Law: From Bluebook to Blogs and Beyond."This event (featuring an interesting group of speakers) is scheduled to take place at New York Law School on Friday, February 16, 2007. Registration is required, but the event is being offered free of charge.Posted at 05:18 PM by Howard Bashman"Free-speech dispute settled; High schooler told to stop passing out anti-abortion fliers during classes":This article appears today in The Pittsburgh Post-Gazette.

"Terror suspect was terrorized in a Navy brig": Columnist Fred Grimm has this op-ed today in The Miami Herald.Posted at 05:04 PM by Howard Bashman"High court needs more trust, not more rules; Good manners, not official rule, should govern private discussions": The Detroit News today contains an editorial that begins, "The Michigan Supreme Court will hold a hearing tomorrow on whether it should adopt a rule that could carry a punishment for justices who reveal confidential internal court discussions and material. The proposed rule stems from a spectacularly bitter feud between one of the justices and some of her colleagues."Posted at 04:15 PM by Howard BashmanNorth Carolina state appellate court reinstates ACLU's lawsuit seeking declaration that the requirement to use the "Holy Scriptures" for oaths also includes the Quran, the Old Testament, and the Bhagavad-Gita: You can access today's ruling of the Court of Appeals of North Carolina at this link.

"Libel lawsuit appeal in works": The Kane County (Ill.) Chronicle today contains an article that begins, "Lawyers for the Kane County Chronicle have taken the first step toward an appeal of a $7 million libel judgment against the newspaper for columns about Illinois Supreme Court Chief Justice Robert Thomas."

"Hershey alumni hope to reargue case": The Patriot-News of Harrisburg, Pennsylvania today contains an article that begins, "The Milton Hershey School Alumni Association has applied to the state Supreme Court for the right to reargue for the power to challenge the school's operations, claiming a recent court decision ignored a 'special interest' test."

"Insurance Firms Targeted in Credit Case": The Associated Press provides a report that begins, "Several Supreme Court justices seemed taken aback Tuesday at the idea that insurance companies might be required to notify tens of millions of customers they aren't getting the best rates because of their credit reports."

"Court Nixes Sentence of Man in Bomb Plot": David Kravets of The Associated Press provides a report that begins, "A federal appeals court on Tuesday threw out the sentence of a man who was convicted of plotting to bomb Los Angeles International Airport at the turn of the millennium."

Avoiding United States income tax is no reason to live in Antarctica: The U.S. Court of Appeals for the Seventh Circuit today issued a decision holding that "Antarctica is not a 'foreign country'" for purposes of a tax law excluding income earned in a foreign country.Posted at 01:54 PM by Howard Bashman"Mahoney Calls 'Heads,' Wins An Argument":This post appears today at WSJ.com's "Law Blog."Posted at 01:00 PM by Howard Bashman"Court Orders Review of Vioxx Class Suit": The Associated Press provides a report that begins, "A New Jersey appellate court panel on Tuesday opened the door to a potential class action lawsuit against Merck & Co. on behalf of people who took its now-withdrawn painkiller Vioxx and want the company to pay for tests to detect possible heart ailments."

"Crossbow attack shocks judiciary": The Korea Herald provides a report that begins, "A former professor's attack on a judge with a crossbow Monday sent shock waves through judicial circles and prompted calls for measures to safeguard the safety of judges."Posted at 12:40 PM by Howard Bashman"An op-ed by Professor Charles Fried discusses legal representation in America": Harvard Law School's web site provides free access at this link to Law Professor Charles Fried's op-ed "Mr. Stimson and the American Way" published today in The Wall Street Journal. The op-ed begins, "Defense Department official Charles Stimson showed ignorance and malice in deploring the pro bono representation of Guantanamo detainees by lawyers in some of the nation's leading law firms, and in calling on their corporate clients to punish them for this work."Posted at 12:30 PM by Howard Bashman"Break-In at Pa. Supreme Court Office in City Hall": Philadelphia's KYW Newsradio 1060 provides this written report.Posted at 12:25 PM by Howard Bashman"UT law professors to argue before U.S. Supreme Court Wed.; Capital Punishment Clinic offers students real-life court experience":This article appears today in The Daily Texan.Posted at 12:15 PM by Howard Bashman"CJ Roberts and sentencing law: the virtues (and vices?) of consensus." Doug Berman has this post at "Sentencing Law and Policy."

Access online today's statements from U.S. Supreme Court Justices regarding the granting or denying of certiorari: Justice John Paul Stevens issued a statement respecting the denial of the petition for writ of certiorari in Joseph v. United States, No. 06-5590.

Justice Antonin Scalia issued a statement respecting the denial of the petition for writ of certiorari in United States v. Omer, No. 05-1101.

And a divided three-judge panel today has ruled that a Michigan state court's consolidation hearing -- during which the state court consolidated the trial of one criminal defendant with that of his co-defendants -- did not constitute "a critical stage of the criminal proceeding" requiring the defendant's counsel to be present. You can access today's ruling at this link.Posted at 10:24 AM by Howard Bashman

The article begins, "So many people came to listen to lawyers argue the death penalty appeal of convicted Chino Hills murderer Kevin Cooper that dozens of overflow spectators had to watch from the courthouse cafeteria on a closed-circuit television. But three seats remained empty during the hearing last week in the large ceremonial courtroom of the U.S. 9th Circuit Court of Appeals. They were the chairs reserved for the judges, who were hundreds of miles away, listening to the arguments via video hookup, and occasionally asking questions." The article goes on to report that "the Cooper hearing marked the first time that an argument was held with none of the judges present, according to Mary M. Schroeder, the 9th Circuit's chief judge."

According to the article, one of the judges on the panel -- Circuit Judge Ronald M. Gould -- "has serious health problems that make it dangerous for him to fly, according to Cathy Catterson, the 9th Circuit's chief clerk." The article says that The LATimes attempted to discuss the issue of oral argument via video hook-up with the three judges on the panel, but that none was willing to discuss the issue while the Cooper appeal remains pending.

Weinstein reports that "in recent months, an increasing number of 9th Circuit judges have invoked their privilege of appearing via video, even when they did not have a compelling reason, according to judges on the court who spoke on a not-for-attribution basis. Two judges on the court took particular umbrage at a colleague who they said had recently informed the court that it would be inconvenient to attend arguments because they would conflict with a child's basketball games."

In the July 5, 2006 installment of my weekly "On Appeal" essay for law.com, headlined "Predicting Technology's Impact on Appellate Oral Argument," I wrote: "To be sure, technology occasionally allows attorneys or judges to participate in oral argument from a remote location. I've argued one appeal in which a judge on the panel participated via videoconference, and another appeal in which a judge participated by phone, but I felt that the technology wasn't an adequate substitute for more direct interaction. In my opinion, being unable to observe the judge's expressions and nonverbal cues in person deprives the advocates of valuable information. For that reason, I'm not a fan of teleconferencing for appellate oral arguments."Posted at 08:10 AM by Howard Bashman

"Suit calls sacrifice a religious right": The Washington Times today contains an article that begins, "Jose Merced said he is tired of Euless police knocking at his door and interrupting his church services. Police have told Mr. Merced that his Santeria religious rites are against the law in this rapidly growing community because some of its ordination rituals involve the sacrifice of animals."Posted at 08:02 AM by Howard Bashman"Law school deans sign letter condemning boycott; Pentagon official provoked outcry": The Boston Globe today contains an article that begins, "The deans of Massachusetts' major law schools joined about 100 law deans in signing a letter condemning a senior Pentagon official's suggestion that US companies should boycott law firms representing detainees at Guantanamo Bay, Cuba."

"The Deputy Assistant Secretary of Defense Suggests A Boycott of Law Firms that Represent Guantanamo Detainees: Why This Kind of Blacklisting Is Always Wrong, and McCarthyite." Anthony J. Sebok and Spencer Weber Waller have this essay online today at FindLaw.Posted at 06:48 AM by Howard Bashman

Monday, January 15, 2007

"Courtroom Reporter Looks Back on Memorable Trials":This audio segment (RealPlayer required) featuring Associated Press reporter Linda Deutsch appeared on this evening's broadcast of NPR's "All Things Considered."Posted at 05:40 PM by Howard Bashman"High Court weighs insurance case": Today's broadcast of the public radio program "Marketplace" contained this audio segment (RealPlayer required). A transcript of the segment is also available online.Posted at 05:33 PM by Howard BashmanUtah's highest court says don't diss the judiciary, or else it might diss-miss your case: The Supreme Court of Utah issued an opinion on Friday refusing to reach the merits of the issue on which that court had granted certiorari review in two related cases because "petitioners' briefs in each case are replete with unfounded accusations impugning the integrity of the court of appeals panel that heard the cases below." The Utah high court's unanimous opinion goes on to state:

These accusations include allegations, both direct and indirect, that the panel intentionally fabricated evidence, intentionally misstated the holding of a case, and acted with improper motives. Further, petitioners' briefs are otherwise disrespectful of the judiciary. Accordingly, we strike petitioners' briefs as containing irrelevant and scandalous matters in violation of rule 24(k) of the Utah Rules of Appellate Procedure, affirm the result reached by the court of appeals in each case, and assess attorney fees against petitioners' counsel.

Thanks to LegalNewsLine.com for the pointer.Posted at 05:27 PM by Howard Bashman"Washington v. Washington Education Association": This past Saturday's broadcast of C-SPAN's "America & the Courts" focused on this case, in which "[t]he Court will decide if states can require labor organizations to ask non-union employees permission to use fees paid to the union on political activities." You can view the broadcast online, on-demand by clicking here (RealPlayer required).

"Court urged to act swiftly on campaign ads case": Lyle Denniston has this post today at "SCOTUSblog."Posted at 04:02 PM by Howard Bashman"Chief justice assigns himself a difficult case": The Concord (N.H.) Monitor today contains an editorial that begins, "As chief justice of the United States, John Roberts is something less than the boss of his colleagues on the Supreme Court. He can't tell them how to decide a case. He can't stop them from granting interviews, giving lectures or writing books. About the worst thing he can do is to stick one of the other justices with the writing of a dull, arcane ruling."Posted at 11:35 AM by Howard Bashman"Reform eminent domain": Today in The Washington Times, Jeremy P. Hopkins has an op-ed that begins, "Any Virginian outraged by the United States Supreme Court's decision in Kelo v. New London should examine Virginia law, which often gives Virginians less protection than the court gave the property owners in Kelo. Virginia law allowed a housing authority to take an owner's house without the owner's notice and at a price set by the authority in the owner's absence."Posted at 10:30 AM by Howard Bashman"Unusual adoption case has high stakes": Yesterday's edition of The Maine Sunday Telegram contained an article that begins, "Sixteen years ago, Olive Watson wanted to ensure her long-time lover's financial security. So she adopted her. Now, Watson's lawyers are trying to get the adoption annulled to keep Patricia Spado from collecting a share of the riches left by the man whom Fortune magazine called 'the greatest capitalist who ever lived.' A complex legal dispute is now under way in two states over the adoption, which took place in a Rockland courtroom in 1991."

"State's top court to hear case of oversleeping":This article appears today in The Stamford (Conn.) Advocate.Posted at 09:45 AM by Howard Bashman"Gang member sets precedent; Case will guide rulings related to violent youths turned criminal adults": The Knoxville News Sentinel today contains an article that begins, "A Knoxville gang member who has spent most of his life breaking the law has now made it. The case of Black Gangster Disciple Almon D. Wells, 26, is the backdrop for a landmark 6th U.S. Circuit Court of Appeals ruling that sets a legal precedent on how violent acts committed by criminals too young to vote should be classified in the federal court system."Posted at 09:44 AM by Howard Bashman"Fielding Once Again at the Service of a President; Fred Fielding puts his lucrative private practice aside to help the White House battle a combative Congress": T.R. Goldman has this article (free access) in today's issue of Legal Times.Posted at 09:20 AM by Howard Bashman"Cheney defends Pentagon; Its data requests protect U.S. security and don't violate privacy, he says; A House Democrat says he'll hold hearings": David G. Savage has this article today in The Los Angeles Times.

"Virginia Assembly To Tackle Abortion; One Measure Would Outlaw Most Procedures":This article appears today in The Washington Post.Posted at 08:30 AM by Howard Bashman"Strike-Stopping Judge Is Elevated By Eliot Spitzer": Joseph Goldstein today has an article that begins, "Governor Spitzer's decision yesterday to elevate a judge in Brooklyn to the state's highest court signals Mr. Spitzer's willingness to break ranks with his supporters in organized labor."

"Documents Borne by Winds of Free Speech": The New York Times today contains an article that begins, "A showdown is scheduled for a federal courtroom in Brooklyn tomorrow afternoon, where words like 'First Amendment' and 'freedom of speech' and 'prior restraint' are likely to mix seamlessly with references to 'BitTorrent' and 'Wiki.'"Posted at 08:20 AM by Howard Bashman"Politicizing Prosecutors": The New York Times today contains an editorial that begins, "The Bush administration has appointed an extreme political partisan as the new United States attorney for Arkansas. Normally, the Senate would have vetted him, and quite possibly blocked his appointment. But the White House took advantage of a little-noticed provision of the Patriot Act, which allows it to do an end run around the Senate."Posted at 08:10 AM by Howard Bashman"The Big News in the Rehnquist FBI File: There is None." Michael C. Dorf (whose blog you can access here) has this essay online today at FindLaw.Posted at 07:58 AM by Howard Bashman"Blawg Review #91": Available online here at "Public Defender Stuff."Posted at 07:55 AM by Howard Bashman

Sunday, January 14, 2007

"New Law Could Subject Civilians to Military Trial; Provision Aimed at Contractors, but Some Fear It Will Sweep Up Other Workers":This front page article will appear Monday in The Washington Post.Posted at 11:44 PM by Howard Bashman"Perjury Trial Is Set to Begin for Former Cheney Adviser": Neil A. Lewis will have this article Monday in The New York Times.

"Spitzer Selects a Black Jurist for Top Court":This article will appear Monday in The New York Times.Posted at 11:35 PM by Howard Bashman"Chocolate bar case at top court highlights difficulties of copyright laws": Canadian Press provides this report.Posted at 09:18 PM by Howard Bashman"Flanders U.S. court nomination languishes": Monday's edition of The Providence (R.I.) Journal will contain an article that begins, "It has been 10 months since former U.S. Sen. Lincoln D. Chafee nominated former Rhode Island Supreme Court Justice Robert G. Flanders Jr. for a seat on the U.S. 1st Circuit Court of Appeals, in Boston, but the White House has yet to send Flanders' candidacy to the Senate Judiciary Committee for consideration." Of course, technically speaking, a person isn't nominated for a federal judgeship until the White House formally makes the nomination, which hasn't yet happened in this instance.Posted at 09:05 PM by Howard Bashman"Death Be Not So Complicated: U.S. Supreme Court addresses fairness of four sentencing hearings." David G. Savage has this article in the January 2007 issue of The ABA Journal.Posted at 05:14 PM by Howard Bashman"A new diversity at Michigan":This editorial appears today in The Chicago Tribune.

"Dead End: Capital Punishment: At a Crossroads, or Is This the Exit?" Neely Tucker has this article today in The Washington Post.Posted at 05:00 PM by Howard Bashman"U.S. can't tell a combatant from a cook": Joseph Margulies has this op-ed today in The Chicago Tribune.Posted at 04:55 PM by Howard Bashman"Deletions in Army Manual Raise Wiretapping Concerns": The New York Times today contains an article that begins, "Deep into an updated Army manual, the deletion of 10 words has left some national security experts wondering whether government lawyers are again asserting the executive branch's right to wiretap Americans without a court warrant."

"High court to broadcast oral arguments online": The Associated Press recently reported from Louisiana that "Starting next week, anyone who has a computer and fast Internet access will be able to watch the Louisiana Supreme court in action. Oral arguments will be broadcast live through the court's Web site, Chief Justice Pascal Calogero Jr. said Thursday."

"State's highest court under fire -- from within": Booth Newspapers today provide a report that begins, "According to its critics -- some of whom work down the hall -- a four-justice majority is building an administrative wall around the Michigan Supreme Court to guard against outside challenge or internal criticism. In short, the court is developing a penchant for secrecy, according to three justices in a series of dissents in the past month that have laid bare professional and personal acrimony on the state's highest court."

"Chief Justice: Judges' pay, courthouses need upgrade; Salaries near U.S. lowest; computer system from 1980s."This article appears today in The Salem (Ore.) Statesman Journal.Posted at 08:32 PM by Howard Bashman"Maine blogger gains seat at major trial": The Portland (Me.) Press Herald today contains an article that begins, "Maine political blogger Lance Dutson will cover next week's Scooter Libby trial on perjury and obstruction of justice charges, joining the first group of bloggers to receive credentials to a federal court trial."Posted at 08:30 PM by Howard Bashman"Democrats may push to shutter war prisons; Party leaders say they'll cut funding":This article appears today in The Boston Globe.Posted at 03:55 PM by Howard Bashman"They've Got Mail: It might be yours." The Washington Post today contains an editorial that begins, "Is the federal government opening citizens' mail without obtaining warrants? Was a statement that was quietly issued when the president signed an obscure Postal Service reform bill last month a new assertion of power by the administration to engage in such warrantless searches? The answer to both these questions is disturbingly unclear."Posted at 03:50 PM by Howard Bashman"Hoping To Avoid Landmark Ruling; High Court Removes Obstacles But Sidesteps Subpoena Issue - For Now": Today in The Hartford Courant, Lynne Tuohy has an article that begins, "Former Chief Justice William J. Sullivan may testify voluntarily before the legislature's judiciary committee, but the landmark constitutional battle over whether his testimony can be forced by legislative subpoena remains very much a live issue."Posted at 03:35 PM by Howard Bashman"Absolut Power: The real reason the Bush administration won't back down on Guantanamo." Dahlia Lithwick has this jurisprudence essay online at Slate.Posted at 03:25 PM by Howard Bashman"Trial of terror suspect Padilla delayed until April; The trial of terror suspect Jose Padilla, which was scheduled to start later this month, is being postponed until April":This article appears today in The Miami Herald. The article begins, "A Miami judge on Friday postponed the nation's most prominent terror trial from later this month to April because of numerous unresolved issues -- including the question of Jose Padilla's competence to assist in his defense."Posted at 03:20 PM by Howard Bashman"Doctor's Killer Tries to Make Abortion the Issue": The New York Times contains this article today.

"Military Expands Domestic Surveillance":This article will appear Sunday in The New York Times.Posted at 02:57 PM by Howard Bashman"Stormy Outlook as Gonzales Faces Senate Democrats": The New York Times today contains an article that begins, "Attorney General Alberto R. Gonzales, who has faced controversy throughout his two-year tenure, is likely to enter an even stormier phase next Thursday when he appears before the Senate Judiciary Committee for the first time since control fell to the Democrats."Posted at 01:54 PM by Howard Bashman"Pentagon Remark on Detainees Stuns Legal Experts":This audio segment (RealPlayer required) featuring Nina Totenberg appeared on today's broadcast of NPR's "Weekend Edition Saturday."Posted at 01:50 PM by Howard Bashman"Round Up the Usual Lawyers": The New York Times today contains an editorial that begins, "No one who has followed President Bush's policies on detainees should be surprised when a member of his team scorns American notions of justice. But even by that low standard, the administration's new attack on lawyers who dare to give those prisoners the meager representation permitted them is contemptible."Posted at 01:45 PM by Howard Bashman"John Grisham Faces Real Court Room Drama": The Associated Press provides a report that begins, "Best-selling author John Grisham and a couple he knows must answer allegations that they deliberately caused a woman's emotional problems by accusing her of sending them anonymous letters, the Virginia Supreme Court ruled Friday."

Is the federal DNA Analysis Backlog Elimination Act of 2000 unconstitutional? The law requires the United States Probation Office to collect a DNA sample from any probationer, parolee, or supervised releasee "who is, or has been, convicted of a qualifying offense."

Yesterday, Circuit Judge Harry Pregerson dissented from the Ninth Circuit's ruling that the law is not unconstitutional. In Judge Pregerson's view, "the DNA Act exceeds Congress's power under the Commerce Clause."

"Mount Soledad cross case appeal by city dismissed; Fine is ruled moot: U.S. controls land": The San Diego Union-Tribune today contains an article that begins, "A federal appeals court dismissed the city of San Diego's appeal yesterday of a now-irrelevant $5,000 per day fine imposed by a federal judge in May in the legal fight over the Mount Soledad cross. In a brief ruling, a three-judge panel of the 9th U.S. Circuit Court of Appeals said the city's appeal was moot because it no longer controls the land that the La Jolla landmark sits atop."

Sixth Circuit deals knock-out blow to Ohio punch-card voting lawsuit:An order that the Sixth Circuit issued on December 1, 2006 in Stewart v. Blackwell noted that the parties were in agreement that the case, in which the Sixth Circuit had previously granted rehearing en banc, had become moot.

Yesterday, the Sixth Circuit issued an order vacating the district court's judgment and instructing that the case be dismissed as moot. Election Law @ Moritz provides access to earlier court filings in the case via this link. Law Professor Rick Hasen's "Election Law" blog covered the Sixth Circuit's earlier grant of rehearing en banc in the case at this link. My earlier coverage of the case can be accessed here and here.Posted at 10:44 AM by Howard Bashman

"The plaintiffs-appellees are eleven Indonesian villagers from Aceh who allege that Exxon's security forces committed murder, torture, sexual assault, battery, false imprisonment, and other torts." Yesterday, a divided three-judge panel of the U.S. Court of Appeals for the D.C. Circuit issued a decision denying Exxon's petition for writ of mandamus seeking to dismiss plaintiffs' remaining claims as non-justiciable political questions.

Circuit Judge David B. Sentelle wrote the majority opinion, in which Senior Circuit Judge Harry T. Edwards joined. Circuit Judge Brett M. Kavanaugh dissented, explaining that "In light of the precedents of the Supreme Court and this Court, and the State Department's reasonable explanation of how this lawsuit would harm U.S. interests, I would grant the petition for a writ of mandamus and order dismissal of the complaint as a non-justiciable political question."Posted at 10:28 AM by Howard Bashman

"Justice Dept. Concealing Leak Report": The Associated Press provides an article that begins, "The Justice Department is fighting in court to keep secret a government report concluding that it leaked confidential and damaging information against a former prosecutor accused of bungling a high-profile terror trial." You can view the heavily-redacted leak report at this link.Posted at 10:05 AM by Howard Bashman"Suit Against Times to Be Tossed Out": The Washington Post today contains an article that begins, "A federal judge said yesterday that he will throw out -- for the second time -- the defamation lawsuit a former Army scientist filed against the New York Times Co. over columns that he contends blamed him for the 2001 anthrax attacks."Posted at 10:04 AM by Howard Bashman"Abortion amendment challenged; State fights federal regulation that could cost it $37 billion": Today in The San Francisco Chronicle, Bob Egelko has an article that begins, "A state lawyer urged a judge Friday to head off a collision between California health laws and a federal anti-abortion amendment that could cost the state a ruinous $37 billion in funding if it penalized doctors or hospitals for refusing to perform emergency abortions."

"Judge Apologizes": Will Evans of the Center for Investigative Reporting provides a report that begins, "A federal judge identified by the Center for Investigative Reporting for making campaign contributions while on the bench has apologized for violating the judicial code of conduct. Judge Deborah L. Cook of Ohio made two political donations after she was appointed by President Bush to the 6th U.S. Circuit Court of Appeals in 2003."

"Superior Court Withdraws Recent Child Porn Opinion": Asher Hawkins of The Legal Intelligencer, Philadelphia's daily newspaper for lawyers, provides a news update (free access) that begins, "The Superior Court has withdrawn its recent first-impression holding that merely to look at child pornography on the Internet -- without intentionally saving or downloading any images viewed -- does not amount to 'knowing possession' of child pornography as proscribed under state law."

And in somewhat related news coverage, The Harrisburg Patriot-News reports today that "Charge against ex-officer dismissed." The article begins, "Lebanon County Judge Robert Eby has dismissed a child-pornography charge against Richard Dimond, a former South Londonderry Twp. police officer. Dimond, 33, of North Cornwall Twp., was charged after receiving an e-mail from a 16-year-old girl containing two topless photographs of herself. Dimond deleted the photos after looking at them without saving or copying them, according to testimony."Posted at 08:54 AM by Howard Bashman

"Justices to review death penalty case; Once again, the 9th Circuit Appeals Court's sentence overturning will be reconsidered": David G. Savage has this article today in The Los Angeles Times.

Programming note: Once again, the work-related matter that has caused me to be in Washington, DC today will have me off-line for much of the day. Additional posts will appear later today, after I return home to the Philadelphia area.Posted at 08:20 AM by Howard Bashman"High court's Scalia advocates against 'activist' judges": The Cleveland Plain Dealer on Thursday contained this article.

"Guantanamo stirs protests; In Cuba, Europe and the U.S., activists decry detentions at the camp, where terror suspects first arrived 5 years ago":This article appears today in The Los Angeles Times.Posted at 07:02 AM by Howard Bashman"250 potential jurors show up for Nichols case": The Atlanta Journal-Constitution today contains an article that begins, "Court officials didn't seem too disappointed Thursday when only about a third of the potential Fulton County jurors summoned to court in the case of accused courthouse gunman Brian Nichols showed up."Posted at 06:57 AM by Howard Bashman"Unveiled Threats: A Bush appointee's crude gambit on detainees' legal rights." The Washington Post contains this editorial today.Posted at 06:48 AM by Howard Bashman"New Jersey Says Clerics Aren't Required to Unite Gay Couples":This article appears today in The New York Times.

"Canadian Court Rules Lesbian Partner Is a Parent": The New York Times today contains an article that begins, "Last week, a 5-year-old Ontario boy became a member of a larger family. An appeals court ruled that he has three parents: a father and two mothers."

"A voice from Gitmo's darkness: A current detainee speaks of the torture and humiliation he has experienced at Guantanamo since 2002." Jumah al-Dossari has this op-ed today in The Los Angeles Times.Posted at 07:20 AM by Howard Bashman"Justice enters Prop 2 case; Court seeks briefs; U-M drops race, gender to qualify":This article appears today in The Detroit Free Press.

"Jury selection to begin in Nichols trial": The Atlanta Journal-Constitution today contains an article that begins, "Jury selection begins Thursday in the death penalty trial of accused courthouse killer Brian Nichols."Posted at 07:04 AM by Howard Bashman"Trapped at Guantanamo": Melissa Hoffer has this op-ed today in The Boston Globe.Posted at 06:58 AM by Howard Bashman"Bush Resubmits Judge's Name; Bar Associations Oppose Bryant For Federal Bench, But She Has Key Backing": The Hartford Courant today contains an article that begins, "The White House has resubmitted its federal judicial nomination of state Judge Vanessa L. Bryant, whose appointment the U.S. Senate failed to act upon last year after she underwent a bruising review of her qualifications."Posted at 06:54 AM by Howard Bashman"Law Firm Employee Is Accused of Posing as Lawyer in Court": The New York Times contains this article today.Posted at 06:50 AM by Howard Bashman"Too Casual To Sit on Press Row? Bloggers' Credentials Boosted With Seats at the Libby Trial."This article appears today in The Washington Post.

"New Iraq Commander Spoke Up for Judith Miller": Josh Gerstein has this article today in The New York Sun.Posted at 06:08 AM by Howard Bashman"Two Recent Federal Appellate Decisions on Prisoners' Religious Exercise Claims: Illustrations of the Application of the Religious Land Use and Institutionalized Persons Act to the Prison Context." Marci Hamilton has this essay online today at FindLaw.Posted at 06:05 AM by Howard Bashman"Just Looking: Should Internet Ignorance Be a Defense to Child Porn Charges?" That was the title of the December 4, 2006 installment of my "On Appeal" column for law.com.

On Wednesday, the Pa. Superior Court withdrew its three-judge panel opinion and granted reargument en banc of its decision. You can access that court's docket entries at this link.Posted at 12:28 AM by Howard Bashman

"[M]ore research will be needed to establish whether failures to report or return have properly been categorized by this and most other courts as crimes of violence." Is failing to report to jail on time to begin serving a criminal sentence a "crime of violence"? Circuit Judge Richard A. Posner today issued this interesting opinion on behalf of a unanimous three-judge panel of the U.S. Court of Appeals for the Seventh Circuit.Posted at 11:58 PM by Howard Bashman"CIA Defends Document Secrecy at Trial": The Associated Press provides a report that begins, "The CIA cannot reveal 'alternative interrogation methods' used on terrorists because doing so would cause exceptionally grave damage to national security by telling enemies how the agency gathers intelligence, the government has told a judge."Posted at 11:42 PM by Howard BashmanOn this evening's broadcast of NPR's "All Things Considered": The broadcast contained audio segments entitled "University of Michigan Head Balances Law, Diversity" and "Michigan School Announces New Admissions Rules" (RealPlayer required).Posted at 11:40 PM by Howard Bashman"5 years after detainees' arrival, policy questions remain": Carol Rosenberg of McClatchy Newspapers provides a report that begins, "Only a few reporters and military escorts were allowed to observe the airstrip at Guantanamo Bay, Cuba, the afternoon of Jan. 11, 2002, when the U.S. military cargo plane touched down bearing its bizarre and scary cargo: 20 men in day-glo orange jumpsuits, chains and masks."Posted at 11:34 PM by Howard Bashman"Rights of Unions and Nonmembers Vie at Court": Linda Greenhouse will have this article Thursday in The New York Times.

On November 22, 2006 your blog "How Appealing" called our attention to the confusion surrounding the D. C. Circuit's resolution of the rehearing petition filed in Abigail Alliance for Better Access to Dev.
Drugs v. Von Eschenbach, 445 F.3d 470 (D.C. Cir.), panel reh'g denied, 469 F.3d 129 (D.C. Cir.), judgment vacated and reh'g en banc granted, No. 04-5350 (D.C. Cir. Nov. 21, 2006). You correctly observed that the published panel decision denying rehearing was immediately available on the Court's website but the unpublished en banc Court's order granting rehearing was not readily available to the public until the following day and then only to those who have accounts with the federal judiciary's PACER electronic docket service and pay a fee.

As a result of your blog, I asked the Court at a recent meeting to change our practice. I am pleased to report that the Court adopted a policy of publishing all orders that grant panel rehearing or that grant rehearing en banc. Consequently, in the future, such orders will be available to the public, immediately and without charge. Thank you for bringing this matter to the attention of the court.

This is truly excellent news, and I thank Chief Judge Ginsburg for bringing this change in practice to the attention of this blog's readers. My post from November 22, 2006 refereced in Chief Judge Ginsburg's email can be accessed at this link.Posted at 11:20 PM by Howard BashmanThanks for a wonderful evening: Just wanted to thank my dinner and pre-dinner companions for a wonderful evening here in Washington, DC.Posted at 11:12 PM by Howard BashmanThe Associated Press is reporting: An article reports that "Appeals Court to Hear S.D. Abortion Case." My earlier coverage of yesterday's development appears at this link.

Programming note: I'll be traveling to Washington, DC this afternoon in connection with a work-related matter that will require my presence there on Thursday and Friday. This evening, I'll be visiting with a couple of friends in the mainstream media, one of whom was so kind as to pick up my Justice Anthony M. Kennedy bobblehead doll from The Green Bag's headquarters in Virginia.

In the first of those three decisions, the Sixth Circuit has ruled that the so-called "ministerial exception" precludes subject matter jurisdiction over a woman's claim that her termination from employment as a resident in a hospital's Clinical Pastoral Education program violated the Americans with Disabilities Act. You can access the decision at this link.

A second decision addresses when the equitable doctrine of laches may be raised as a defense in a copyright infringement suit given that Congress has prescribed a specific limitations period during which actions under the statute may be brought. The Sixth Circuit's answer is that laches may sometimes, if only rarely, be raised as a defense to an otherwise timely copyright infringement lawsuit. You can access the decision at this link.

The third and final decision issued today overturns the dismissal on summary judgment of a lawsuit alleging that a Michigan police officer violated the federal civil rights of a man, while placing him under arrest, when applying a choke hold that caused the man's death. The second to last paragraph of the opinion states, "When the facts in this case are viewed in the light most favorable to the plaintiff, it is clear that Partee posed no threat to the officers or anyone else. It follows that the use of the neck restraint in such circumstances violates a clearly established constitutional right to be free from gratuitous violence during arrest and is obviously inconsistent with a general prohibition on excessive force." You can access the opinion at this link.Posted at 10:28 AM by Howard Bashman

According to Lyle's post, the U.S. Supreme Court's ruling today in Norfolk Southern R. Co. v. Sorrell, No. 05-746, was the only decision issued today in an argued case. The case was argued on October 10, 2006, and you can access the oral argument transcript at this link.

"Court limits testimony of first live witness in Microsoft trial; A lawyer says the move will not affect the antitrust case against the software giant":This article appeared last Friday in The Des Moines Register. Counsel for the plaintiffs now have a web site providing free access to the trial transcripts from the case.Posted at 08:32 AM by Howard Bashman"Prosecutors offer glimpse of People v. Lord Black": The Toronto Globe and Mail contains this article today.Posted at 08:27 AM by Howard Bashman"Search stops at teen's skull; The bullet in a suspect's head may link him to a shootout, but Texas police are blocked from retrieving the slug":This article appears today in The Los Angeles Times.Posted at 08:17 AM by Howard Bashman"Death row inmate's lawyer says his client was framed; The attorney requests that Kevin Cooper's case be returned to a lower court for further review": Today in The Los Angeles Times, Henry Weinstein has this article about a case argued yesterday before a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit.Posted at 08:15 AM by Howard Bashman"Restore workers' constitutional rights":This editorial about a case to be argued this morning before the U.S. Supreme Court appears today in The Washington Times.Posted at 08:05 AM by Howard Bashman"Death Penalty Showdown; Killer's Defense Cleared To Call Prosecutors To Testify In A Legal Test For State's Law": The Hartford Courant today contains an article that begins, "Setting the stage for a unique hearing, defense lawyers for a convicted killer have been given approval to call the state's top prosecutors to the witness stand as part of an effort to show the state's 34-year-old death penalty law is unconstitutional."Posted at 08:00 AM by Howard Bashman"[Ana Marie Cox's] alleged elusiveness has triggered yet another delay in the juicy Washingtonienne court case." So reports The Washington Post's Reliable Source column today.Posted at 07:55 AM by Howard Bashman"Benched Nominees: President Bush takes a welcome step back from judicial brinkmanship."This editorial appears today in The Washington Post.Posted at 07:50 AM by Howard Bashman"Jane Bolin, the Country's First Black Woman to Become a Judge, Is Dead at 98": The New York Times contains this obituary today.Posted at 07:45 AM by Howard Bashman"Appeals Court Weighs Padilla Charge": The Associated Press provides a report that begins, "A federal appellate court is weighing whether to restore the only charge against alleged al-Qaida operative Jose Padilla that carries a sentence of up to life in prison. The 11th Circuit Court of Appeals was set to hear arguments Wednesday over the conspiracy charge that was dismissed in August by a judge who ruled it was essentially the same as two other terrorism-support counts against Padilla and two co-defendants."Posted at 07:42 AM by Howard Bashman"Supreme Court refuses to rule on man's 47-year sentence for rape":This article appears today in The Seattle Times.Posted at 07:40 AM by Howard Bashman"Jersey judge up for circuit court post; Hillman is expected to be Bush's nominee": The Newark (N.J.) Star-Ledger yesterday contained an article that begins, "President Bush is expected to nominate Noel Hillman, a longtime prosecutor and a newly appointed federal judge in New Jersey, to an opening on the 3rd U.S. Circuit Court of Appeals." You can access the official Federal Judicial Center biography for U.S. District Judge Noel L. Hillman at this link.Posted at 06:50 AM by Howard Bashman"High court backs MedImmune; Paying user fees doesn't bar Md. firm from suing patent holder":This article appears today in The Baltimore Sun.Posted at 06:48 AM by Howard Bashman"4 white flags fly in courts fight; With the Senate in the hands of Democrats, the most controversial of Bush's judicial nominees are withdrawn": David G. Savage and Henry Weinstein have this article today in The Los Angeles Times.

"Ruling Seen as Giving an Edge to Challengers of Patents": Linda Greenhouse will have this article Wednesday in The New York Times.Posted at 10:48 PM by Howard Bashman"Bush Drops Plans to Renominate 3 Judges": Neil A. Lewis will have this article Wednesday in The New York Times.

"Retiring justice hangs up robe, 18 years experience":This article appears today in The Reno Gazette-Journal.Posted at 08:54 PM by Howard Bashman"Group sues to get schools more time to implement Proposal 2": The Detroit Free Press provides a news update that begins, "A group that supports affirmative action asked the U.S. Supreme Court this afternoon for an emergency injunction to give a 6-month reprieve to three state universities to comply with Proposal 2."

"I hope that, one day, Vince Smith is on the U.S. Supreme Court; it would not surprise me, and it would thrill me." So says former Arkansas Governor Mike Huckabee in an article headlined "Huckabee and Hope - a love affair" published today in The Hope Star. The quote refers to Eighth Circuit Judge Lavenski R. Smith.Posted at 08:12 PM by Howard Bashman"Union fight reaches high court": The Seattle Times today contains an article that begins, "In an appeal of a Washington state case, the U.S. Supreme Court is set to decide whether labor unions must get permission before spending nonmembers' fees on political activities. The case, which is scheduled for oral arguments in Washington, D.C., on Wednesday, is the latest clash in a nationwide war between labor unions and anti-union forces."Posted at 08:05 PM by Howard Bashman"U.S. justices hear bond case":This article appears in Thursday's edition of The Pacific Daily News of Guam.Posted at 07:58 PM by Howard Bashman"Four Appeals Court Choices Dropped From Consideration": Bloomberg News provides this report.Posted at 07:54 PM by Howard Bashman"Supreme Court declines to hear appeal by Fumo": The Philadelphia Inquirer today contains an article that begins, "The U.S. Supreme Court yesterday declined to hear an appeal from State Sen. Vincent J. Fumo, who sought to remove the judge supervising a grand jury investigating him."Posted at 07:40 PM by Howard Bashman"Judge OKs VA hospital chaplaincy; 1st Amendment not violated, judge says": The Capital Times of Madison, Wisconsin today contains an article that begins, "A federal judge dismissed a lawsuit Monday brought by the Madison-based Freedom From Religion Foundation, which alleged that the Department of Veterans Affairs' chaplaincy program violates the First Amendment prohibition against government support of religion."

"Free-speech dispute over union fees; US Supreme Court to look at how much permission unions need to put nonmembers' dues toward political causes": Warren Richey will have this article Wednesday in The Christian Science Monitor.Posted at 07:33 PM by Howard BashmanReversal's afoot for model's drug trafficking conviction: The Associated Press provides a report that begins, "The Missouri Supreme Court on Tuesday overturned the drug trafficking conviction of a Swedish foot model, ruling a police officer wrongly searched her rental car after stopping her for a minor traffic violation."

According to the Reply Brief, "If Respondent's view is correct, a lawyer can be barred from exercising his First Amendment right to 'castigate courts' for as many years as it takes to exhaust all possible appeals from the judicial decision the lawyer wishes to castigate."

Slate accidentally went live with the essay on Friday, thereby testing whether anyone monitors those pesky RSS feeds. As it turned out, the answer was "yes."Posted at 03:58 PM by Howard Bashman

Access online the transcripts of today's U.S. Supreme Court oral arguments: The transcript of today's oral argument in Sinochem Int'l Co. v. Malaysia Int'l Shipping Corp., No. 06-102, can be accessed here. Although three attorneys argued to the Court, the entire case was argued in just 38 minutes.

"Ninth Circuit Reconsiders Arizona Voter ID Case on Remand from Supreme Court": Law Professor Rick Hasen has this post at his "Election Law" blog. As Rick's post notes, David Kravets of The Associated Press has an article headlined "Judges debate Arizona voter ID rule" reporting on yesterday's Ninth Circuit oral argument. As of this moment, the oral argument audio is not yet available for download from the Ninth Circuit's web site.Posted at 03:44 PM by Howard BashmanEighth Circuit grants rehearing en banc to reconsider preliminary injunction prohibiting enforcement of measures enacted in 2005 revising South Dakota's law on informed consent to abortion: I have uploaded at this link a copy of today's order of the U.S. Court of Appeals for the Eighth Circuit.

"Bush Judicial Nominees Withdraw": The Associated Press provides a report that begins, "In a concession to the Senate's new Democratic majority, four of President Bush's appeals court appointees have asked to have their nominations withdrawn, Republican officials said Tuesday. These officials said that William Haynes, William Myers and Terrence Boyle had all decided to abandon their quest for confirmation. Another nominee, Mike Wallace, let it be known last month that he, too, had asked Bush to withdraw his nomination."Posted at 01:00 PM by Howard Bashman"Shouldn't SCOTUS have just DIG'd Burton?" Law Professor Doug Berman has this post at the "Sentencing Law and Policy" blog. I think the short answer is that today's per curiam opinion recognizes that neither of the lower courts possessed jurisdiction to rule on the case, whereas a dismissal as improvidently granted would have permitted the lower court rulings to remain in effect.Posted at 12:44 PM by Howard BashmanToday's U.S. Supreme Court opinions in argued cases: The Court has itself now posted these decisions online.

The opinion in MedImmune, Inc. v. Genentech, Inc., No. 05-608, can be accessed here. Justice Antonin Scalia delivered the opinion of the Court, from which Justice Clarence Thomas dissented. The oral argument transcript is here.

The opinion in United States v. Resendiz-Ponce, No. 05-998, can be accessed here. Justice John Paul Stevens delivered the opinion of the Court, from which Justice Scalia dissented. The oral argument transcript is here.

"Court rules on patent case": Lyle Denniston has this post at "SCOTUSblog." Oral argument in MedImmune, Inc. v. Genentech, Inc., No. 05-608, occurred on October 4, 2006, and you can access the oral argument transcript by clicking here.

According to Lyle's post, the Court today also announced its ruling in United States v. Resendiz-Ponce, No. 05-998. Oral argument in that case occurred on October 10, 2006, and you can access the transcript here.

Today's third and final ruling was a per curiam decision in Burton v. Stewart, No. 05-9222. That case was orally argued on November 7, 2006, and the transcript can be accessed here.

Second update: At 11:40 a.m. eastern time, The Associated Press has made today's opinions available online via this link. Thus, for approximately fifty minutes this morning, the only place the Court's opinions issued today were freely available to the public was at a law blog.Posted at 10:08 AM by Howard Bashman

"Gang case defense can't get witness list": Today in The San Francisco Chronicle, Bob Egelko has an article that begins, "Federal prosecutors in the death penalty trial of alleged members of a violent San Francisco gang don't have to give defense lawyers police reports that identify witnesses before the trial, a federal appeals court ruled Monday."

"Justice Dept. undercut its own case, Chronicle argues": Today in The San Francisco Chronicle, Bob Egelko has an article that begins, "The Chronicle told a federal appeals court Monday that a secret government filing in support of fines against the newspaper and prison sentences for two of its reporters actually undermines prosecutors' case against the journalists for refusing to disclose the sources of grand jury leaks about athletes and steroids."Posted at 08:35 AM by Howard Bashman"Hamas case jury hears final arguments; U.S. lawyer tells case on Bridgeview man": The Chicago Tribune contains this article today.Posted at 08:33 AM by Howard Bashman"Truck driver's fate in hands of jurors; Only defendant to face death in smuggling case awaits sentencing":This article appears today in The Houston Chronicle.

"Costs of Inmates' Calls Cut":This article appears today in The New York Sun.Posted at 08:12 AM by Howard Bashman"Anheuser-Busch and Czech brewer settle longtime dispute": The St. Louis Post-Dispatch today contains an article that begins, "Anheuser-Busch Cos. and Czech brewer Budejovicky Budvar have set aside nearly a century of trademark disputes to reach a deal allowing the St. Louis company to import Budvar's Czechvar Premium Czech Lager into the United States."

"Married or Not, Gay Couple Are Ruled Legally Separated": The New York Times today contains an article that begins, "A gay couple may have been mistaken in thinking they were legally married, but they still have to honor the terms of their separation agreement, which is the equivalent of any other type of contract, a judge in New York City has ruled."Posted at 07:55 AM by Howard Bashman"Senate Restores Pay Raise for Judges": The Associated Press provides this report.Posted at 07:40 AM by Howard Bashman"Nation's highest court hears Guam bond case, Justices question whether 90-day limit for appeals exceeded": The Pacific Daily News of Guam provides this update.Posted at 06:48 AM by Howard Bashman"Who's the Kangaroo Court Now? A California Judge's Insult to the Court of Appeal, and What the Underlying Case Reveals." Shaun Martin has this essay online at FindLaw.Posted at 06:45 AM by Howard Bashman

Monday, January 08, 2007

"Supreme Court Refuses Case Challenging Group's Designation as Terrorists": Linda Greenhouse will have this article Tuesday in The New York Times.

Update: As of 6 p.m. eastern time, Slate appears to have removed the text of this piece.Posted at 03:30 PM by Howard Bashman

"Kan. AG Worried About Abortion Case File": The Associated Press provides this report.Posted at 03:24 PM by Howard Bashman"New Jersey Could Kill the Death Penalty": Patrick Mulvaney will have this essay in the January 22, 2007 issue of The Nation.Posted at 02:55 PM by Howard Bashman"Sports-recruiting case returns to high court": Online today at the First Amendment Center, Tony Mauro has a news analysis that begins, "The authors of the First Amendment’s freedom-of-speech clause might be surprised to learn that in the 21st century, it is being invoked to protect a private school football coach from being punished for recruiting eighth-grade boys from other schools for his team."Posted at 02:50 PM by Howard Bashman"Rehnquist's Skeletons: How the Nixon and Reagan White Houses tried to silence his critics." Bonnie Goldstein has this Hot Document online at Slate.Posted at 02:38 PM by Howard BashmanThe Associated Press is reporting: Now available online are articles headlined "Navy Lawyer Faces Court-Martial"; "Wife Asks Jury to Spare Truck Driver"; and "Tribe Keeps Fighting for Treaty Rights."Posted at 02:35 PM by Howard Bashman"Court To Hear Challenge To Costly Calls From Prison": The New York Sun today contains an article that begins, "The state's highest court tomorrow will hear a legal challenge to the high fees associated with placing collect calls from the state's prison system."Posted at 12:30 PM by Howard BashmanBriefs filed in support of DontDateHimGirl.com's motion to dismiss Pittsburgh attorney's lawsuit against that web site: You can access the web site's amended brief in support of its motion to dismiss by clicking here. In addition, the Electronic Frontier Foundation, the ACLU of Pennsylvania, and the Center for Democracy and Technology have filed an amicus brief in support of the web site's motion to dismiss. The motion is scheduled to be argued on January 23, 2007.

"Web error reveals censure of U.S. judge; In a rare move only inadvertently made public, action is urged against Manuel L. Real of L.A. for misconduct": On December 23, 2006, Henry Weinstein had this article in The Los Angeles Times. My initial coverage of that article appeared at this link.

On January 2, 2007, I posted online all but page nine of the Judicial Council of the Ninth Circuit's ruling in In re Complaint of Judicial Misconduct, No. 05-89097 (Nov. 16, 2006). You can access all but page nine of that ruling by clicking here.

As I explained in my January 2nd post, the copy of the ruling that I received did not include page nine. Over this past weekend, however, I obtained the missing page, and thus you can access missing page nine by clicking here.Posted at 10:33 AM by Howard Bashman

"No abortion ban expected; But 2007 Legislature might consider bills to restrict procedure":This article appears today in The Sioux Falls Argus Leader.Posted at 08:45 AM by Howard Bashman"Chief justice off mark on judges' earnings; Judicial pay shouldn't be tied to Congressional salaries": The Miami Herald contains this editorial today.Posted at 08:44 AM by Howard Bashman"California court can bring reason to marriage debate":This editorial appears today in The San Jose Mercury News.Posted at 08:42 AM by Howard BashmanWhat's next -- Howie Mandel hosting cert. or no cert.? Hollywood's quest to glorify U.S. Supreme Court law clerks will soon reach new heights (or perhaps depths) as Fox Television has given the green light to a new series entitled "Supreme Courtships."

According to Variety magazine, "'Supreme Courtships' revolves around the professional and personal world of six Supreme Court clerks. Tieche and Adelstein Productions ('Prison Break') principals Marty Adelstein and Michael Thorn will produce."

And The Hollywood Reporter says that "'Supreme Courtships,' from 20th Century Fox TV and Adelstein Prods., is a comedic drama about the personal and professional lives of six Supreme Court clerks and their supervisors."Posted at 08:40 AM by Howard Bashman

In news from Guam: KUAM News provides a report that begins, "Expected to be the major news event Tuesday is Governor Felix Camacho's bond-borrowing case, which will be heard before the highest court in the land."Posted at 08:33 AM by Howard Bashman"Resnick bows out without a word; Outspoken justice was a voice for underdogs":This article appears today in The Columbus (Ohio) Dispatch.Posted at 08:30 AM by Howard Bashman"Amid state appeals stands 'Dr. Death'; In hundreds of cases, point man out to preserve lethal injection": Howard Mintz had this article Saturday in The San Jose Mercury News.Posted at 08:24 AM by Howard Bashman"New London Officials Have High Hopes For Reviving Development; Fort Trumbull plan at issue in talks set to start Wednesday":This article appears today in The Day of New London, Connecticut.Posted at 08:20 AM by Howard Bashman"Evidence grows that America has begun to lose faith in death penalty": Patti Waldmeir of Financial Times has this article today.Posted at 08:15 AM by Howard Bashman"Trash Haulers Aim for Lower Fees in U.S. Supreme Court Fight": Greg Stohr of Bloomberg News provides this report.Posted at 08:12 AM by Howard Bashman"Sue parents for not securing car seat? A strange case before Minnesota's top court may hand a new risk to drivers carting kids."This article appeared last Friday in The St. Paul Pioneer Press.

"Mass Repeal: The liberal case for Massachusetts's anti-gay-marriage amendment." Benjamin Wittes has this essay online today at The New Republic's web site.

Ben is currently on leave from his job at The Washington Post while he works on a book about the federal courts of appeals. During his leave, he'll be writing a column on legal affairs scheduled to appear every other Monday for TNR Online.Posted at 06:50 AM by Howard Bashman

"U.S. Education Officials Question Diversity Standard; Critics Say the American Bar Association's New Criterion Promotes Racial Quotas at Law Schools":This article will appear Monday in The Washington Post.Posted at 11:32 PM by Howard Bashman"Outside Court, Roberts Hears Dissent; Critics Deride Fear of 'Constitutional Crisis' Over Judicial Pay": Robert Barnes will have this article Monday in The Washington Post.Posted at 11:30 PM by Howard Bashman"Supreme Court Justices Scalia & Breyer gave their views on the Constitution in Washington, DC": That was the subject of last night's broadcast of C-SPAN's "America & the Courts." You can view the broadcast -- hosted by ABC News correspondent Jan Crawford Greenburg and taped on December 5, 2006 -- by clicking here (RealPlayer required).

"Professor: Case crashed, burned; Wittig, Lake prosecution faulted for its presentation of corporate flights."This article appears today in The Topeka Capital-Journal. My earlier coverage appears here and here.Posted at 09:45 AM by Howard Bashman"Former teacher's lawsuit challenges union's use of money": The Associated Press provides a report that begins, "Former high school teacher Gary Davenport didn't have any particular problem with unions and even had a union job in college, but the man whose name is on an anti-union lawsuit to be heard next week by the U.S. Supreme Court says politics kept him from joining up when he got his teaching job in 1998."Posted at 09:30 AM by Howard Bashman"Don't pay supes like members of Congress: Chief Justice John Roberts rightly argues that judges need higher pay, but he exaggerates."This editorial appears today in The Los Angeles Times.

"Odor in the court: Fumigation can't come too soon after Justice Weaver's charges." Today in The Detroit Free Press, Ron Dzwonkowski has an op-ed that begins, "Justice Elizabeth Weaver threw a real stink bomb into the halls of the Michigan Supreme Court just before Christmas, accusing four of her fellow justices of unethical behavior and violating her right to free speech. It's going to take some doing to clear the air, but let's get the fans running soon."Posted at 09:10 AM by Howard Bashman"Alito will speak to UA law students": The Tuscaloosa News yesterday contained an article that begins, "U.S. Supreme Court Justice Samuel Alito will be the seventh justice to speak at the University of Alabama in about as many years when he addresses law students Feb. 13." According to the University of Alabama School of Law's web site, "Justice Samuel Alito of the U.S. Supreme Court will deliver the eighth Albritton Lecture on Tuesday, February 13, 2007, at 2:00 p.m. in Room 287-288 of the Law Center. Judge Harold Albritton III established the lecture series in 1996."

"Newest member makes history; She's first woman elected directly to state's high court": Yesterday's edition of The Salem Statesman Journal contained an article that begins, "When Virginia Linder of Salem formally joined the Oregon Supreme Court on Thursday, she made history. She is the first woman that voters have elected directly to the state's highest court."Posted at 08:40 PM by Howard Bashman"Medication Missteps: What patients should learn from the new revelations about Chief Justice William Rehnquist's struggle with prescription painkillers." Newsweek has today posted online this web exclusive.Posted at 08:32 PM by Howard Bashman"Appellate court's longest-serving judge battles death penalty": The Associated Press provides a report that begins, "A veteran federal appeals judge has turned up the volume in his opposition to the death penalty, drawing increasing attention with his unusually blunt and outspoken opinions. Former Chief Judge Boyce Martin, a Jimmy Carter appointee on one of the most sharply divided appeals courts, is building a reputation for his stand, such as with a dissent that Capital Defense Weekly described as blistering."Posted at 08:30 PM by Howard Bashman"Supreme Court is poised to act on business-sector cases": MarketWatch provides this report.Posted at 08:28 PM by Howard Bashman"Who's got mail?" The Chicago Tribune today contains an editorial that begins, "In deploying executive authority in the war on terrorism, President Bush has a history of pushing the envelope--and in the latest controversy, you might read that phrase literally."Posted at 08:15 PM by Howard Bashman"Dueling Briefs In Sullivan Case; At Issue: Whether Appeal Is Now Moot." Today in The Hartford Courant, Lynne Tuohy has an article that begins, "The state Supreme Court is poised to resolve the constitutional issue of whether lawmakers can subpoena judges to testify at proceedings other than impeachment or confirmation hearings. Or not. Documents filed Friday by lawyers for former Chief Justice William J. Sullivan maintain the landmark legal question will have to wait for another day, because Sullivan's sudden willingness to testify makes the appeal by the co-chairmen of the legislature's judiciary committee a moot issue."Posted at 04:40 PM by Howard Bashman"N.Y. Times Urges Judge To Dismiss Hatfill Suit":This article appears today in The Washington Post.Posted at 04:30 PM by Howard Bashman"Tipping Over a Defense of Enron": Today in The New York Times, business columnist Joe Nocera has this essay (TimesSelect temporary pass-through link) about Malcolm Gladwell's article headlined "Open Secrets: Enron, intelligence, and the perils of too much information" published in the January 8, 2007 issue of The New Yorker.Posted at 04:08 PM by Howard Bashman"Court Was Once Cloistered; Now Its Chief Does 'Nightline'": Robert Barnes has this article today in The Washington Post.Posted at 03:58 PM by Howard Bashman"Editor's E-Mail May Be Used in Suit Against The Times": Neil A. Lewis has this article today in The New York Times.Posted at 10:30 AM by Howard Bashman"Supreme Court to Rule on Whistle-Blowing": The Associated Press provides this report.Posted at 10:14 AM by Howard Bashman"Westar verdicts set aside on appeal; Three-judge panel blasts government in its ruling on dozens of convictions":This article appears today in The Kansas City Star.

"White House Seeks Lawyer Wise to Ways of Congress":This article will appear Saturday in The New York Times.Posted at 10:52 PM by Howard Bashman"It's Time to Abolish 'Invisible' State Appellate Court Rulings": The brand new installment of my "On Appeal" essay for law.com can be accessed here.Posted at 10:50 PM by Howard Bashman"Byron L. Trackwell, proceeding pro se, filed a complaint in the United States District Court for the District of Kansas, alleging that the Clerk of the United States Supreme Court had repeatedly withheld from Justice Stephen Breyer an application he submitted that challenged the constitutionality of the Iraq War." So begins a ruling that the U.S. Court of Appeals for the Tenth Circuit issued today.Posted at 09:23 PM by Howard BashmanFormer Westar Energy executives David C. Wittig and Douglas T. Lake win reversal of their federal criminal convictions in Tenth Circuit appeal: You can access today's ruling of the U.S. Court of Appeals for the Tenth Circuit at this link.

The Kansas City Star provides a news update headlined "Convictions of David Wittig, Douglas Lake thrown out on appeal" that begins, "In a stunning development, an appeals court today tossed the fraud convictions of former Westar Energy Inc. executives David Wittig and Douglas Lake, finding insufficient evidence of their guilt. In a 43-page opinion, the 10th U.S. Circuit Court of Appeals set aside the men’s convictions on every count and ruled that most of the counts could not be retried."

"Court to hear seven cases": Lyle Denniston has this late-breaking news at "SCOTUSblog." You can access today's U.S. Supreme Court Order List at this link (starting at page 2 of the PDF file).Posted at 05:40 PM by Howard Bashman"Supreme Court Justice Clarence Thomas to Visit Bowen School of Law": The UALR William H. Bowen School of Law has issued this press release noting that on Friday, January 26, 2007 Justice Thomas will deliver the second Arnold Lecture. Justice Antonin Scalia delivered the first Arnold Lecture in October 2004, and my coverage of Justice Scalia's talk can be accessed at this link.

Update: A reader emails to note that the references to "Mississippi" in the press release would be a bit more accurate if they instead said "Missouri."Posted at 04:54 PM by Howard Bashman

In common with the O'Connor biography, Biskupic's new book will be based on research at political and judicial archives, interviews with key players in the Justice's past, and Biskupic's background in covering the Court since the late 1980s. Although this book has yet to be written, given how interesting Justice Scalia appears to be from a distance, I'm really looking forward to reading all about him.Posted at 01:48 PM by Howard Bashman

"Grassroot Lessons: For anyone opening a small law practice, Gerald Ford is a case study in how paying attention to bedrock principles can lead to big things--even if it's not the White House." The ABA Journal eReport has reprinted this article, which originally appeared in the February 1997 issue of The ABA Journal magazine.Posted at 11:22 AM by Howard BashmanFive questions for Jan Crawford Greenburg: She's hot. And not merely in the way that David Lat and I have previously observed (see here, here, and here). Over the past couple of months, she's hosted on-camera talks with four members of the U.S. Supreme Court. Earlier in 2006, she left The Chicago Tribune to cover the Court and other major law-related stories for ABC News. And in just a few weeks, Jan's still top-secret book about the Court will arrive in bookstores near you.

Jan graciously agreed to answer the following five questions from one of her favorite law bloggers:

1. Enquiring minds want to know -- How did you land the first-ever network television interview with Justice John Paul Stevens earlier this week, is Justice Stevens as wonderful in person as one would imagine, and can you tell us anything about the interview that didn't make it onto TV or your online write-up of the interview?

A: I asked. I knew he had a letter of praise from President Ford hanging in his chambers and was understandably proud of it, so I asked if he would talk to me about the man who nominated him. To my shock (and the surprise of everyone at the Court), he agreed. He'd gotten up at 5 a.m. to fly to Washington for Ford's funeral, so it was a long day by the time he sat down to talk with me later that afternoon. But he was gracious and charming--even when he firmly declined at one point to answer a question about whether his views on affirmative action had "evolved." I guess the only interesting thing that didn't make TV or online was that he told me the precise date he plans to retire.

A: Pure coincidence. Roberts was helping out an old friend. He agreed to an interview at the University of Miami, where Dean Colson, who he's known since their days clerking for Chief Justice Rehnquist, is chairman of the board of trustees. Stevens was remembering a man he said he would have liked as a friend. Scalia and Breyer were engaging in a friendly duel. But it's OK if my bosses here at ABC think it's all me.

3. What are your views on whether the Supreme Court should televise its courtroom sessions or at least release same-day audio of oral arguments, and do you think either of those two things is likely to happen soon?

A: You know how a television reporter has to answer that! Of course I'd like to see the cameras in there--though I think people would soon lose interest when they saw what most oral arguments were like. Not exactly riveting television. And didn't Roberts say he wouldn't want to contribute to Justice Souter's demise by bringing cameras in? The same-day audio is a different story. It’s worked so well that I'd guess the Court will use it as a shield against cameras.

4. Your career seems to be on a meteoric path from The Crimson White to The Chicago Tribune (with TV stints on PBS's The NewsHour and CBS's Face the Nation) to ABC News. Did you ever experience any difficult times on your path to your current success when you thought you might have to abandon journalism for something else, and if so please explain.

A: Being a superstitious southern girl, I refuse to even consider whether I've put myself on a path to success after 20 years in the news business. Howard, you are going to jinx me! I am knocking on wood right now. And yes, I left journalism for an oh-so-brief time after law school in 1993. I'd started at the Tribune covering fires and shootings on the night shift, then I moved onto reporting on county government. After a few years of that, I decided to go to law school, and I took a job at Cahill, Gordon & Reindel after spending a summer there. I was going to be doing things, not chronicling them. But it dawned on me right around graduation that instead of championing the rights of my fellow ink-stained wretches in critical First Amendment cases, I was more likely going to be doing mind numbing document production in some insurance coverage case. So I called the Tribune, and they let me come back. Cahill, alas, made me pay back my $5,000 signing bonus. But I didn't have to reimburse them for Bar-Bri, so there is that. And Floyd Abrams sent me a nice holiday card for a few years.

5. Your book -- "Supreme Conflict: The Inside Story of the Struggle for Control of the United States Supreme Court" -- is due to go on sale on January 23, 2007, and it's being hyped as "an explosive, newsbreaking account" that draws on "unprecedented access to the Supreme Court justices and their inner circles." Mindful of the fact that much of the book remains top-secret, please tell us what you can about it, including why folks should buy it. And is there any truth to rumors of a forthcoming "Jan Crawford Greenblawg" hosted at ABCNews.com?

A: I was fortunate enough to talk to nine Supreme Court justices, and a lot of what I heard surprised me. Some of the conventional wisdom is just wrong, especially about Justice Thomas and his early role on the Court. When I was doing the research on his early years, my heart would literally jump up every time I came across a memo or document that was completely at odds with what people have long said about him. The book is about how the Rehnquist Court came to disappoint conservatives--what went wrong from their point of view--and how those perceived missteps influenced the Bush Administration's thinking on Roberts, Miers and Alito. So it's almost like two books, with the second half tracing the inside story of those nominations. That's where most of the so-called "breaking news" is, and that's why Penguin isn't releasing any copies in advance. So you can get two books for the price of one! As for the blog, in the next couple of weeks, I'll start sharing some more inside information, as well as my thoughts on the law, the Court and how the University of Alabama is going to crush Auburn with our new head football coach. In the meantime, my main goal is talking you, Howard, into contributing. Oh, and we haven't decided on a name for it, but don't you think a great title like Greenblawg is probably taken?Posted at 11:05 AM by Howard Bashman

"Michigan senators get more say over judges": Booth Newspapers today provide a report that begins, "A change in U.S. Senate rules will guarantee Democratic Sens. Carl Levin and Debbie Stabenow veto power over President Bush's judicial nominees for Michigan federal court seats for the next two years."Posted at 10:27 AM by Howard Bashman"Appeals court upholds law requiring a photo ID to vote": Henry Weinstein has this article today in The Los Angeles Times.

Today's article also notes that "The decision came just six weeks after a disciplinary panel of the 9th Circuit voted 9 to 1 to publicly reprimand Real for improperly seizing control of a bankruptcy case involving a defendant whose probation he was supervising. Real has appealed that decision to the Judicial Conference of the U.S. in Washington." On Tuesday, I made available that disciplinary panel's ruling via this link.Posted at 08:33 AM by Howard Bashman

"Jury-service snubs hit the Nichols case":This article appears today in The Atlanta Journal-Constitution.Posted at 08:23 AM by Howard Bashman"Truck driver's family says trial has torn them apart; Mom pleads for her son's life, says she's lost touch with her grandkids": The Houston Chronicle today contains an article that begins, "The grisly scene in Victoria that left fathers, brothers and sons dead destroyed families in Mexico, Honduras, El Salvador and the Dominican Republic. And after three years behind bars and a conviction that has him facing the death penalty, the actions of Tyrone Williams Jr. -- the driver pulling a sealed trailer in which 19 illegal immigrants lost their lives -- has torn apart another family: his own."Posted at 08:22 AM by Howard Bashman"Harriet Miers to step down as White House counsel; A long letter by Bush's controversial, thwarted Supreme Court choice gives no reason for her resignation":This article appears today in The Los Angeles Times.Posted at 08:20 AM by Howard Bashman"Potential judicial nominees studied; Two Mississippians with ties to GOP failed to win Congress' favor": The Clarion-Ledger of Jackson, Mississippi on Tuesday contained an article that begins, "Potential nominees interviewed by the White House for the opening on the 5th U.S. Circuit Court of Appeals could be back in the running now that Jackson lawyer Michael Wallace has withdrawn his name from consideration."

"John Roberts and the 'constitutional crisis' of an underpaid judiciary": Law Professor Ann Althouse offers these thoughts at her blog.Posted at 07:55 AM by Howard Bashman"Bush Warned About Mail-Opening Authority; Recent 'Signing Statement' Seen as Stretching Law": The Washington Post today contains an article that begins, "President Bush signed a little-noticed statement last month asserting the authority to open U.S. mail without judicial warrants in emergencies or foreign intelligence cases, prompting warnings yesterday from Democrats and privacy advocates that the administration is attempting to circumvent legal restrictions on its powers."Posted at 07:48 AM by Howard Bashman"Remain Silent? Some in Custody Spell It All Out."This article appears today in The New York Times.Posted at 07:45 AM by Howard Bashman"Lagging Judicial Pay": The New York Times today contains an editorial that begins, "Chief Justice John Roberts Jr. is embracing with gusto a cause championed by his predecessor, William Rehnquist: the need for a substantial pay raise for federal judges. Justice Roberts devoted his second annual year-end report to this issue, and it should be required reading in Congress."Posted at 07:33 AM by Howard Bashman"Court weighs parental rights of sperm donors; Definition of parent issue in Kan. case": Joan Biskupic has this article today in USA Today.Posted at 06:42 AM by Howard BashmanThe New York Sun is reporting: In today's newspaper, Joseph Goldstein has an article headlined "Supreme Court Will Hear Cases On Union Political Activities."

"The Supreme Court Considers a Case Involving the Dormant Commerce Clause, and the Balance of Federal and State Power: How Will the New Roberts Court Rule In This Area?" Vikram David Amar has this essay online today at FindLaw.Posted at 06:35 AM by Howard Bashman

Thursday, January 04, 2007

"Miers Steps Down As White House Gears Up for Battle":This front page article will appear Friday in The Washington Post.

Another unfortunate way to die is as the result of an automobile accident stemming from the occupants in one car attempting to flash their privates for the enjoyment of the occupants of another car. But although a flashing-related automobile accident causing death would provide plenty of fodder for an interesting appellate court ruling, today's ruling goes even farther, by affirming on double-jeopardy grounds a federal district court's ruling that enjoins Oklahoma from retrying the flashing driver of the vehicle on first-degree manslaughter charges.Posted at 08:35 PM by Howard Bashman

Ninth Circuit temporarily thumbs its nose at FRAP 32.1: Under Federal Rule of Appellate Procedure 32.1, federal appellate courts are prohibited from preventing or discouraging citation to unpublished or non-precedential opinions issued on or after January 1, 2007.

As of today, however, the footnote found at the front of Ninth Circuit non-precedential opinions has been revised to read: "This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3." No reference to any restriction on citation remains.Posted at 05:33 PM by Howard Bashman

I'm too sexy for my class action: Can you still call it a model class action after the appellate court affirms in part but vacates in part? Yes, indeed you can. Today's ruling of the U.S. Court of Appeals for the Second Circuit can be accessed here. (This post's title inspired by the hit song from Right Said Fred.)Posted at 05:13 PM by Howard Bashman"First Amendment Limits on Regulating Judicial Campaigns": Law Professor Rick Hasen has this post at his "Election Law" blog.Posted at 03:45 PM by Howard Bashman"Rites and Wrongs: The Ford funeral and Justice Stevens." Edward Whelan has this essay today at National Review Online.Posted at 03:40 PM by Howard BashmanA federal district court's use of an electronic case filing system does not broaden the grounds on which papers may be rejected, Seventh Circuit holds: Despite the many wonderful attributes of court electronic filing systems, there's always a concern that pleadings might be misfiled or not end up where they are supposed to be. Once such unfortunate scenario gave rise to an appeal that the U.S. Court of Appeals for the Seventh Circuit decided today.

Clerks thus must take in whatever is tendered to them; a document may be rejected later if a judicial officer finds a problem, but the initial filing ensures that the process of vetting papers for compliance with the rules does not prevent satisfaction of time limits. An e-filing system likewise must accept every document tendered for filing; it cannot reject any paper that the clerk must accept.

Judge Sykes once was a law clerk for Judge Evans. At that time, her disagreement with one of his decisions was incapable of producing a majority holding for the opposite result.Posted at 03:00 PM by Howard Bashman

Remembering October 2005: On the morning of Monday, October 3, 2005 -- the proverbial first Monday in October -- President Bush announced his intention to nominate Harriet E. Miers to replace Justice Sandra Day O'Connor on the U.S. Supreme Court. This blog's earliest report on that day's events can be accessed via this link (scroll up to access posts appearing later that day).

Twenty-four days later, on the morning of October 27, 2005, Miers had President Bush withdraw the nomination. My coverage of that day's events began with this post (scroll up to access posts appearing later that day).

In her capacity as White House Counsel, Miers oversaw the process of selecting judicial nominees for the White House. It is possible that the departure of Miers will provide cover for the White House to nominate individuals viewed as more moderate than those nominated when the Republicans had a majority in the U.S. Senate. In truth, however, it is difficult to believe that Miers was responsible for the most controversial of the Bush administration's judicial nominees. As always, what the future holds remains to be seen.Posted at 02:35 PM by Howard Bashman

"Miers Resigns As White House Counsel": The Associated Press provides a report that begins, "Harriet Miers, President Bush's failed Supreme Court nominee, has submitted her resignation as White House counsel, the White House announced Thursday."Posted at 12:27 PM by Howard BashmanI'm on the radio: Shortly after 11 a.m. eastern time, I'm scheduled to be a guest on the John Gambling show on News Talk Radio 77 WABC-AM in New York City. You can listen live online via this link.

The segment I've been scheduled to appear on involves court disputes over grandparent visitation rights. I was quoted yesterday in a New York Sun article that previewed such a case now pending before the New York Court of Appeals, that State's highest court.

"The Massachusetts Legislature Finally Allows an Anti-Same-Sex-Marriage Constitutional Amendment to Be Voted Upon: Why Opting to Fulfill Their Legal Duty Was the Right Thing to Do." Edward Lazarus has this essay online today at FindLaw.Posted at 06:35 AM by Howard Bashman

"Judicial Seminars -- Dowling Complains; Adler Responds": Jonathan Adler has this post at "The Volokh Conspiracy."Posted at 10:40 AM by Howard BashmanOn rehearing, Sixth Circuit panel adheres to its earlier decision disqualifying appellate counsel after an attorney who once represented a plaintiff-appellee in this very case went to work for the law firm representing the defendants-appellants:Today's decision on panel rehearing provides new and improved reasons for maintaining the original result.

"Debate over death penalty gears up": The Fort Worth Star-Telegram contains this article today.Posted at 10:00 AM by Howard Bashman"Crash alters meaning of judicial branch; Large tree crushes car belonging to state's chief justice":This article appears today in The Salem (Ore.) Statesman Journal. A related photo can be accessed here.Posted at 09:40 AM by Howard Bashman"U.S. Faces Major Hurdles in Prosecuting Padilla":This audio segment (RealPlayer required) featuring Nina Totenberg appeared on today's broadcast of NPR's "Morning Edition." The audio segment begins by noting another change in the way Padilla prefers to have "Padilla" pronounced.Posted at 09:32 AM by Howard Bashman"Court OKs profession as block to jury service": Today in The San Francisco Chronicle, Bob Egelko has an article that begins, "Prospective jurors can't be removed because of their race, religion or sex. But it's all right to toss a journalist or a teacher. A state appeals court said an Alameda County prosecutor acted for legitimate, nonracial reasons when he challenged a member of the jury pool at a murder trial because she was a member of what he described as 'two notorious liberal professions,' teaching and journalism."

"Juneau woman helped pioneer benefits law; After several years of waiting, same-sex partners are eligible":This article appeared Sunday in The Juneau Empire.Posted at 08:10 AM by Howard Bashman"Testimony of 2 reporters in Army court-martial delayed": Bob Egelko has this article today in The San Francisco Chronicle.Posted at 08:00 AM by Howard Bashman"The Silent Justice: In a rare interview Justice John Paul Stevens talks about President Ford." Jan Crawford Greenburg had this video segment on last night's broadcast of the ABC News program "Nightline."Posted at 07:55 AM by Howard Bashman"Schwarzenegger's gay marriage misstep: If he hadn't vetoed a bill granting marriage rights to all, the governor could have saved the state a court battle."This editorial appears today in The Los Angeles Times.Posted at 07:52 AM by Howard Bashman"Even a Supreme Court loss can propel a cause; Activists find success at the state level in battles to curb eminent domain and affirmative action": Today in The Los Angeles Times, David G. Savage has an article that begins, "For activists who seek to change the law, nothing works better sometimes than losing a big case in the Supreme Court. This year saw two small, public-interest law firms convert losses in the high court into wins in the court of public opinion."Posted at 07:45 AM by Howard Bashman"It's a battle not written in stone": The St. Petersburg Times today contains an article that begins, "To government officials, it was a simple request: A local business owner wanted to donate a monument of the Ten Commandments and place it on the steps of the Dixie County Courthouse. The commissioners, all professed Christians, approved the gift and its placement outside the building in the center of town that is home to several government agencies, including the County Commission."Posted at 07:42 AM by Howard Bashman"Leahy warns Justice over terror policies":This article appears today in The Washington Times.Posted at 07:40 AM by Howard Bashman"N.J. death penalty on way out; The Legislature is moving to abolish it after a report called it costly and pointless": The Philadelphia Inquirer contains this article today.

"FBI Reports Duct-Taping, 'Baptizing' at Guantanamo":This front page article appears today in The Washington Post. My earlier coverage is at this link.Posted at 06:48 AM by Howard Bashman"Truck deaths victims' families demand justice; The penalty phase resumes in smuggling retrial": The Houston Chronicle today contains an article that begins, "As relatives took the stand Tuesday, universal body language told the story of their grief while Spanish translators relayed to the jury how life has changed since losing family members in the nation's deadliest illegal-immigrant smuggling attempt."Posted at 06:45 AM by Howard Bashman"Same-sex marriage ban advances; Lawmakers OK item for ballot, but hurdle remains":This article appears today in The Boston Globe. The newspaper also contains an editorial entitled "A shameful reversal of rights." And columnist Eileen McNamara has an op-ed entitled "This battle's worth a fight."

"Courts Gets Case Of Grandparental Visitation Rights": Today in The New York Sun, Joseph Goldstein has an article that begins, "The state's highest court is set to hear a case today about grandparent visitation rights, an issue so constitutionally troublesome that the nine justices of the U.S. Supreme Court in 2000 issued six conflicting opinions on the topic in a single case." The article mentions the petition for writ of certiorari filed last month in the U.S. Supreme Court on this subject.Posted at 06:24 AM by Howard Bashman

Tuesday, January 02, 2007

"Dramatic drop in Supreme Court rulings fuels questions": The Toronto Globe and Mail on Saturday published an article that begins, "A steady drop in the number of judgments produced by the Supreme Court of Canada hit a striking new low in 2006, with the court rendering just 59 decisions. Statistics compiled by The Globe and Mail show a total that is dramatically lower than years such as 1990, when the court rendered 144 rulings, and 1993, when it handed down 138 rulings. Even measured against its declining output over the past decade, the court still managed an average output in the range of 85 to 90 judgments."Posted at 11:30 PM by Howard Bashman"FBI Details Possible Detainee Abuse": The Associated Press provides this report.

On this evening's broadcast of NPR's "All Things Considered": The broadcast contained audio segments entitled "Bush May Have Lost Chance to Tailor Bugging Law" and "Mass. Votes to Allow Gay-Marriage Ban Proposal." RealPlayer is required to launch these audio segments.Posted at 07:00 PM by Howard Bashman"Ayotte asks judge to keep notification": Saturday's edition of The Concord (N.H.) Monitor contained an article that begins, "In the coming months, lawmakers will consider repealing the state's 2003 parental-notification law that requires a minor to tell a parent or judge before having an abortion. In the meantime, however, the court battle over the law's legality continues."Posted at 05:48 PM by Howard Bashman"Justice Appointed by Ford, Remembers Late President; Exclusive Interview: John Paul Stevens Recalls Ford's Selection Over Conservative Favorite." Jan Crawford Greenburg has this written report at ABCNews.com.Posted at 05:44 PM by Howard BashmanJustice John Paul Stevens interviewed today by ABC News reporter Jan Crawford Greenburg: A producer for the ABC News program "Nightline" sends along the following via email:

Don't know if you'd heard, but Jan Crawford Greenburg had an exclusive, 20-minute sit down on-camera interview this afternoon with Justice John Paul Stevens in which Stevens talked about his memories of Jerry Ford and his judicial philosophy. It was Stevens first and only network television interview. Stevens told Greenburg that when he met Ford, just days before he nominated him to the Court, "my two very firm impressions from that meeting were, one, he was a fine lawyer; and two, he was the kind of person I would really like to have as a friend, because you like him right away." In regard to his judicial philosophy, Greenburg noted that when he nominated him, Ford believed Stevens was "a moderate conservative" and she asked him, "How do you see yourself now." "As a moderate conservative," he replied. "I don't really think I've changed. I think there have been a lot of changes in the court."

Portions of the interview are scheduled to appear on this evening's broadcasts of ABC World News Tonight and Nightline.Posted at 04:48 PM by Howard Bashman"Web error reveals censure of U.S. judge; In a rare move only inadvertently made public, action is urged against Manuel L. Real of L.A. for misconduct": Back on December 23, 2006, Henry Weinstein had this article in The Los Angeles Times.

My post that day noting The LATimes article concluded, "I am attempting to obtain a copy of the decision so that I can post it online at 'How Appealing.'"

The place where the Judicial Council of the Ninth Circuit's ruling in In re Complaint of Judicial Misconduct, No. 05-89097 (Nov. 16, 2006), appeared online for more than a week was Westlaw, at the citation 2006 WL 3478274. A Westlaw search for that citation now returns no result. I have succeeded in obtaining a copy of the ruling in the form of a Westlaw printout made when the decision was freely available online for anyone with a Westlaw account to access.

The copy of the ruling that I have obtained is not of high visual quality. It appears to have been faxed more than once, and I have scanned it into a PDF file, which may have further diminished its visual clarity. In addition, the copy of the ruling includes some underlining, all of which was added by someone other than me. Finally, my copy of the document is currently missing page 9 of the Westlaw printout. I am in the process of seeking to obtain that missing page, and if I succeed in doing so I will promptly post it online. You can access all but page 9 of the Westlaw printout of the ruling by clicking here.Posted at 04:15 PM by Howard Bashman

"Wisconsin's Judicial Speech Restrictions Challenged": The James Madison Center for Free Speech has posted online a press release (currently second item) that begins, "Several Plaintiffs including Wisconsin Right to Life filed suit Friday in federal court seeking to enjoin Wisconsin's canons that forbid state court judicial candidates from responding to a questionnaire asking their views on legal and political issues."

"Mass. Lawmakers Vote on Gay Marriage": The Associated Press provides a report that begins, "Lawmakers in Massachusetts, the only state where gay marriage is legal, voted Tuesday to allow a proposed constitutional amendment to move forward that would effectively ban it."Posted at 03:14 PM by Howard BashmanWhat's new in Kalamazoo? The Kalamazoo Gazette reported on Saturday that "Officials expected to resume work to fill federal, circuit court openings."Posted at 12:23 PM by Howard Bashman"Mass. Gov-Elect Urges No Marriage Vote": The Associated Press provides this report.Posted at 12:20 PM by Howard Bashman"Law professor battles ALS": The Tallahassee Democrat last week published an article that begins, "A law professor who has proven himself brilliant at defending the constitutional right of free speech soon will be deprived of his ability to speak."Posted at 08:30 AM by Howard Bashman"The Unpersuasive Chief: Are judges undercompensated? Maybe, but Chief Justice Roberts doesn’t make the case." Matthew J. Franck has this essay today at National Review Online.Posted at 08:28 AM by Howard Bashman"Old notes detail judge's thoughts":This article appears today in The Concord (N.H.) Monitor.Posted at 08:27 AM by Howard Bashman"Putting God in His Place: New Jersey student-warrior for the Constitution gets a death threat." Columnist Nat Hentoff has this essay online at The Village Voice.Posted at 08:25 AM by Howard Bashman"Letting go of holds: Senators shouldn't be allowed to single-handedly delay nominations or bills." The Los Angeles Times today contains an editorial that begins, "Sen. Sam Brownback (R-Kan.), one of Congress' conservative culture warriors, opposes one of President Bush's judicial nominees because she dared to attend a same-sex commitment ceremony in 2002. Whether they want to enable the senator's bigotry is a question for Kansans and, eventually perhaps, the rest of us (Brownback is a possible 2008 presidential candidate). But the Senate can and should take action to prevent a single senator from imposing his prejudices on the entire body."Posted at 08:07 AM by Howard Bashman"Gay marriage outcome today uncertain": The Boston Globe today contains an article that begins, "Supporters of same-sex marriage are scrambling to hold together a shaky coalition of lawmakers today in hopes of blocking a vote on a proposed constitutional amendment that would ban same-sex marriage in Massachusetts." The newspaper also contains an editorial entitled "The expanding circle of rights."

"Texas Smuggling Deaths Retrial to Resume": The Associated Press provides this report.Posted at 07:42 AM by Howard Bashman"Second Thoughts on Gays in the Military": Former Joint Chiefs of Staff Chairman John M. Shalikashvili has this op-ed today in The New York Times.Posted at 07:38 AM by Howard Bashman"The Former Magnificent Seven": On Saturday, The Wall Street Journal contained an editorial (temporary free access) that begins, "As the clock moved toward midnight in the judicial year yesterday, two federal appeals court judges issued an exquisite, brief ruling that should have members of the legal fraternity clucking from Manhattan to San Francisco."

"Despite 2004 ruling, Mexican truck travel still limited": The Associated Press provides this report.Posted at 10:55 PM by Howard Bashman"The Judicial Vesting Option: Opting Out of Nomination and Advice and Consent." Suppose new federal trial and appellate judges were selected by current federal trial and appellate judges instead of being nominated by the President and confirmed by the Senate. That's the provocative proposal described in this article (abstract with links for download) by Law Professor Tuan Samahon (via "Legal Theory Blog").Posted at 10:42 PM by Howard Bashman"Journalists May Testify in CIA Leak Case": The Associated Press provides this report.Posted at 10:38 PM by Howard Bashman"Paul Clement Stays Cool in Court Hot Seat; He's the government's point man for defending anti-terror policies -- which can lead to some uncomfortable moments": law.com's Tony Mauro provides this report.Posted at 10:22 PM by Howard Bashman"Constitutional Crisis, at Least at the Roberts Household": Jess Bravin has this post today at WSJ.com's "Washington Wire" blog.Posted at 04:25 PM by Howard Bashman"The Supreme Court: The Personalities and Rivalries That Defined America." Law Professor Jeffrey Rosen's new book is scheduled to go on sale later this month, in connection with the debut of a four-part series on PBS.

"Open Secrets: Enron, intelligence, and the perils of too much information." Malcolm Gladwell has this article in the January 8, 2007 issue of The New Yorker.Posted at 11:00 AM by Howard BashmanBring out your unpublished opinions:Federal Rule of Appellate Procedure 32.1 officially starts to apply today, as the rule expressly mandates that federal appellate courts cannot prohibit citation to unpublished or non-precedential opinions issued on or after January 1, 2007.

"Blawg Review #89": Available online here, at "Blawg Review."Posted at 08:40 AM by Howard Bashman"Chief Justice Advocates Higher Pay for Judiciary": Linda Greenhouse has this article today in The New York Times.